24 May 2010

War Powers Bill: submission by the Submarine Institute of Australia

In its submission to the Senate Foreign Affairs, Defence and Trade Legislation Committee inquiry into the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2], the Submarine Institute of Australia (SIA) raised a matter to do with submarine operations:

The submarine’s greatest strength is its ability to operate undetected in sea areas controlled by a potential adversary. It goes without saying, therefore, that the success of submarine operations relies on strict security – disclosure of submarine operational plans negates the submarine’s primary advantage – potentially putting the submarine at greater risk and leading to deterioration in strategic circumstances.

The Institute expressed concern that that the draft Bill would require public disclosure of submarine
operational plans in order to meet the Parliament’s requirement for approval of “warlike” operations. SIA’s solution is “that the Bill be amended to make provision for the Prime Minister to determine that covert operations are excluded from the requirement to achieve Parliamentary Approval of Overseas Service”.

While the issue raised by SIA is an important one I do not agree that the Bill is a problem in this respect.  Section 50C (11) of the Bill expressly states that service beyond the territorial limits of Australia “does not include service by members of the Defence Force ... on an Australian vessel or aircraft not engaged in hostilities or in operations during which hostilities are likely to occur”. 

The whole point of most covert operations is to avoid hostilities; they cease to be covert once the shooting starts.  So if we really are talking about operating “undetected in sea areas controlled by a potential adversary”, I think that the government of the day would be perfectly entitled to consider such operations to be operations during which hostilities were not likely to occur.

Another concern expressed by SIA was:

It is also possible that the threat level for a submarine operation currently underway could be reassessed to ‘warlike’ due to deteriorating circumstances. If that led to public disclosure in the Parliament then that operation could most likely not continue.

The relevant section of the Bill is Section 50C (10), which requires the Minister to report regularly to Parliament on the status of each deployment, what efforts are being made to resolve the circumstances which led to the deployment, and whether there is any reason why Parliament should not resolve to terminate the deployment.

It is a matter for argument how a covert operation that was overtaken by “deteriorating circumstances” would be impacted by the provisions of the Bill. I would be inclined to argue that if the deployment were not a reportable one at the time it took place then it would not be the subject of the regular reports on deployments authorised by the Parliament contemplated by Section 50C (10).

Be that as it may, these are questions of the drafting of the Bill, and whether some particular provisions need to be modified. They do not go to the question of whether or not the control of the war making power should pass to the Parliament. Nor did SIA oppose the central purpose of the Bill – it simply asked for the Bill to be amended to make provision for the Prime Minister to determine that covert operations are excluded from the requirement to achieve Parliamentary Approval of Overseas Service.

Practical questions such as that raised by SIA could have been addressed in the course of hearings had the major political parties agreed to hearings being held.

Referring to the SIA submission and a submission from the Navy League of Australia, the Committee Report made the remarkable observation (page 12) that:

... although only two submissions expressed reservations about the use of classified material, both were in a position to have sound knowledge about the nature and extent of such information and the likely security implications should it be disclosed.

They neglected to say that the joint submission from a former Defence Secretary (myself), another former senior officer of Defence (Andrew Farran) and a former diplomat with a deep background in intelligence (Garry Woodard) saw no such difficulties. They failed to notice the dog that did not bark. Again, this is a question that could have been tested had the Bill been taken seriously enough for the Committee to hold formal hearings.

For the text of the Bill click here.

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