04 April 2010

War Powers Bill crushed by major parties

On 17 September 2008, Western Australian Greens Senator Scott Ludlam introduced in the Senate the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2]. On 20 August 2009, the Senate referred the Bill to the Foreign Affairs, Defence and Trade Legislation Committee for inquiry and report.

The Committee advertised the inquiry and received 31 submissions, including a submission I made with jointly colleagues Andrew Farran and Garry Woodard. The full set of submissions may be accessed here.

The Committee tabled its report in February 2010, without conducting hearings (see below).

The Committee’s Report (downloadable from here) is profoundly disappointing, but hardly surprising in view of the marked lack of enthusiasm shown by both major political parties when it comes to the question of enhancing the Parliament’s role in deciding when to deploy the Australian Defence Force into war or warlike situations.

In its introduction to the Report the Committee states:

1.5        The proposal that Australian Defence Force personnel cannot serve overseas in warlike service unless both Houses of Parliament have approved the deployment is not new. Over the past half century, bills designed to confer on the Parliament this authority have been presented to the Senate. The matter has been debated in the chamber at least twice and on each occasion both major parties rejected the proposal.

1.6        The bill before the committee shows that it has not yet addressed the problems identified with earlier versions of the legislation. Further, after close consideration of the submissions supporting the bill, the committee is of the view that they repeat the opinions and arguments put forward previously and bring nothing new to the debate. With that in mind, the committee decided that little would be gained from holding public hearings that would rework old ground. Instead, in this report, the committee provides an account of the consideration given to the previous proposals; the concerns and objections raised over the years; and the efforts made to rectify the identified problems. It hopes that by doing so, it will focus on the major concerns impeding progress with this type of legislation and contribute to moving the debate forward.

Having asserted that the submissions bring nothing new to the debate, the majority report of the Committee essentially goes on to rehearse the debate that first took place when substantially similar legislation was first introduced in 1985, by Senator Colin Mason of the Australian Democrats. For example, it states that the then Minister for Resources and Energy, Senator Gareth Evans (presumably in his capacity as Minister representing the Minister for Foreign Affairs in the Senate) sympathised with the underlying philosophy of the proposed legislation, but raised a number of problems with its practical implementation.  One wonders whether in Senator Evans has revised his views on this matter in any way in light of his own experiences in the quarter of a century since that time – as Foreign Minister and in his role at the International Crisis Group – and of subsequent events such as the illegal invasion of Iraq, which was opposed by his own party.


In later posts I will comment on some specific issues raised in the Report. In this post I will simply comment on the way the Committee approached its task.

(1)   Even if it is true that the submissions bring nothing new to the debate, which I doubt, their dismissal out of hand on this ground is a bit too cute in light of the changes of circumstances since the first debate on this matter took place in 1985.  We have seen the al-Qaeda attack on the World Trade Centre, which politicians never tire of telling us changed the world as we know it.  We have participated in the invasion of Afghanistan, for reasons which are by no means clear and objectives which are even less clear, and we have been enthusiastic participants in the illegal invasion of Iraq, for reasons that were spurious.

(2)   Whatever people might think of the way I have characterised these important events, there ought at least be widespread agreement that the context in which Parliament ought to consider the matter of the power to deploy Australian military personnel into military action has changed.

(3)   The statement is made in paragraph 2.20 of the Report:

Unfortunately, while many of the submissions supporting the bill gave their strong in-principle support for the legislation, they did not refer to the provisions of the bill. This meant that they did not assist the committee in its analysis of the practical application of the provisions and their implications for the safety and success of operations. Their opinions expressed in submissions were at the level of broad principle without close considerations of the consequences should specific provisions of the bill be enacted.

Two comments about this. First, there is nothing wrong with concerned citizens confining themselves to matters of principle when making submissions in relation to a legislative measure before the Parliament. It is for the Parliament itself, with the assistance of Parliamentary Counsel, to convert principles into legislation, and I think that the proper focus of the debate is what the legislation sets out to achieve, rather than matters of legislative drafting.

Second, it was a decision of the Committee itself not to hold hearings, and thereby forego the opportunity to ask expert witnesses to comment upon any aspects of the Bill they might have chosen to.

(4)   The Committee came to the conclusion that the Bill leaves too many critical questions unanswered to be a credible piece of legislation.  That is hardly surprising; a Private Member’s Bill will always suffer from the disadvantage of being prepared, as its name suggests, by an individual Member of Parliament, without all of the advisory and parliamentary drafting resources available to the Government of the day.

In coming to its conclusion the Committee commented that any proposal to limit or remove the power of the Executive to decide on the commitment of Australian troops to overseas service needs to be examined carefully by the Department of Defence, Attorney-General’s and relevant security agencies.

It was of course open to the Committee to recommend that such an examination take place, but it passed up the opportunity to do so.

Overall, it is hard to avoid the feeling that the Committee was looking for problems rather than solutions, reflecting perhaps the predisposition of the major parties to avoid any reform of the kind proposed in the Bill. Their problem was not really with the way the Bill was drafted, but with its core proposition.

Earlier posts

I have posted a number of earlier pieces on this subject.  In War Powers Bill I noted the introduction of the Bill and outlined its provisions.  In War Powers Bill: Senate Inquiry I noted that it had been referred to the Senate Foreign Affairs, Defence and Trade Committee for inquiry and report.  In War Powers: what the PM said I commented in detail on a disappointing response from the Prime Minister’s Foreign Policy Adviser to a letter from Dr Kristine Klugman on behalf of Civil Liberties Australia.  In War Powers Bill: Pre-emptive self-defence I outlined the Caroline case, the precedent that established the international law regarding acts of pre-emptive self defence. In War Powers Submission, I noted that my colleagues and I had lodged a submission to the inquiry and provided a link to the relevant page of the Parliament House website.

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