15 August 2015

Seventieth Anniversary of the end of the Pacific War

Today is the seventieth anniversary of the end of World War II in the Pacific.

On this day in 1945 my father was on board the MV Duntroon, as head of a Prisoner of War Relief Unit, together with a contingent of Australian General Hospital (Army) nurses. The vessel was bound for India, the mission of those on board being to aid the POWs being liberated from the Japanese in Burma.

When news of the Japanese surrender came through, the vessel was diverted to Singapore, arriving there on the day Lord Louis Mountbatten accepted the formal surrender from the Japanese commander. They set up headquarters in Changi Gaol, and began the dreadful business of assessing the physical and psychological state of the prisoners in Changi and those coming down from the Burma-Thailand Railway and the outlying camps.

The matron in charge of the AGH contingent was the remarkable Madge Brown, whom I got to know well in my school days as she took up a position straight after the war as administrator of student accommodation at the New England University College/University of New England, a position she still held when I left Armidale in 1966. Madge had an eventful war: among her other claims to fame was the fact that she had been in Tobruk during the siege. It was a privilege to have known her.

For more on Madge Brown, see  Ida Madge Brown (1904-2009).

09 June 2015

What a mess

In a series of announcements in August-September 2014 the Prime Minister committed us to a steadily escalating role in northern Iraq: first humanitarian supplies for Yezidi civilians trapped on Mount Sinjar, then air strikes by RAAF FA/18s and airborne support for the missions of other members of the latest US-led Coalition, then an “advise and assist” training role for several hundred soldiers.

This is presented as an operation by a US-led Coalition to degrade and destroy IS, and in early June Foreign Minister Julie Bishop said with some pride in a morning interview on Radio National that the size of Australia’s training contingent is second only to that of the US.

The fact is the principal backers of the Iraqi Government in the fight against IS are the Iranians, so the Americans find themselves de facto allies of a country with which they have no diplomatic relationship, against which they have maintained strong economic sanctions for decades, and against which they have expended considerable diplomatic energy to ensure that they are diplomatically isolated and play no significant role in the settlement of the many problems of the Middle East.

In the minds of the Iraqi Government, however, the Iranians were seen as so central to success that when the Iraqis launched an assault to recover Tikrit, Saddam’s birthplace, they reportedly neglected even to inform the Americans ahead of the event. This might have had something to do with the fact that several months after thousands of American advisers turned up to train the Iraqi Army on which they and various allies had already spent a reported $25 billion, the Iraqi Army still wasn't ready for combat. Most of the hard work would be done by Iran-backed Shi’ite militias, who reportedly made up about two-thirds of the force which the Iraqis assembled outside Tikrit for the operation.

As we now know, things didn’t go according to plan, and the ground forces were forced to call upon US air strikes, which led to American expostulation  that as a matter of policy, the United States does not coordinate...anything with Iran, and that  "The Iraqis have some homework to do on this before we are able to assist them in the area they've asked for." US air support was provided in due course, but the “liberation” of Tikrit was followed by a wave of looting and lynching.

Further evidence of the confusion emerged on 1 June when it was reported that the prosecution of a Swedish national accused of terrorist activities in Syria had collapsed at the Old Bailey, after it became clear Britain’s security and intelligence agencies would have been deeply embarrassed had a trial gone ahead. It seems that British intelligence agencies were supporting the same Syrian opposition groups the accused man was.

This whole operation against IS puts one more in mind of a dog’s breakfast than a well-organised military campaign. It seems neither to be militarily effective nor calculated to win the hearts and minds of the Sunni people living under the dominion of the Islamic State.

Nicholas Stuart summed it up well in The Canberra Times on 26 May (see Ramadi's fall signals a strategy in tatters).  Of our Prime Minister’s approach Stuart says:

Abbott's theological background hasn't served him well in the real world. He instinctively divides forces into black and white, and that's why he's finding himself out of his depth in a Middle East where there are multiple loyalties and conflicts. Should we really be surprised that the simplistic answers he advocated have failed to solve anything?

… Abbott needs to understand that the world is not engaged in some kind of Manichean struggle between good and evil: the Middle East is a complicated situation where subtlety is needed to succeed. 

It's fine to label people, or insist on particular courses of action, but unless you've got the power to enforce your desires you're wasting everyone's time. There's a rule that suggests if you don't understand something you shouldn't get involved lest you make the problem worse. Our PM should consider taking this advice.

And in a letter to The Age published on 27 May, CIAW/AWPR Treasurer Andrew Farran summed it up in a few lines – see Blindly following the US, seventh letter from the top. Andrew’s letter reads:

Tony Abbott would have us follow the US any and every where. So which country in the Middle East does the US most fear? Iran. Which force in the region does Iran most fear? Islamic State. So why is the US so opposed to IS when it could provide the required balance against Iran? Why is it so concerned with the fate of Iraq when it has become irretrievably a pawn of Iran? The region is full of contradictions. Does Mr Abbott comprehend this when he speaks of IS simply as a "death cult"?

Syria and Iraq are destroyed states. A new balance of forces is emerging based on centuries-old, pre-colonial historical and religious rivalries, in which other regional states like Saudi Arabia and Turkey are also involved.

This is not where Australia has direct interests nor should it be involved. The terrorist repercussions from there to here are greatly exaggerated.

30 April 2015

Official Opening of Wright College, Mark II

Wright College was the first men’s college to be opened at the University of New England. It was established in 1958, in temporary buildings, and I was a member of the College throughout my university days, from 1961-65. When the original wooden structures reached the end of their lives in 1996, there was no money to replace them and they were bulldozed, to the grief of large numbers of alumni.

There has now been a miraculous resurrection, and I had the honour of speaking on behalf of the alumni at the official opening ceremony this morning.  Thius is what I said:

·      Chancellor
·      Vice Chancellor
·      Mr Colin Ahoy representing the local Aboriginal community
·      Staff and students past and present
·      Members of the Wright family

As an alumnus of the original Wright College and a graduate of the University of New England it gives me great pleasure to have the opportunity to say a few words on this auspicious occasion.

I will use this opportunity to pay a couple of tributes and to address a couple of remarks to the current residents, students and staff.

My first tribute is to the man that this College honours, Phillip Arundell Wright, known affectionately to all as “P.A.” This remarkable man played an important role in the University’s creation, and was one of its great benefactors: when the White family donated Booloominbah and about 70 acres of land, P.A. donated land around the University, including Laureldale on the other side of Booloominbah, which became the University Farm, land along the creek flats, which became the Consett Davis Playing Fields, and the land upon which we stand. He also donated that magnificent mace which the Esquire Bedell carries before the Vice-Chancellor on academic occasions. I would urge all of you to Google him; right at the top of the list you will see the Australian Dictionary of Biography entry, which will enable you to get the measure of the man in a very few minutes. For those who want more, Judith Wright’s Generations of Men would be a good place to start, and there is a fine portrait of him by Archibald Prize-winning artist W.E. Pidgeon over in the Wright Centre.

My second tribute is to my father, and to his generation of staff and students who worked so hard to build the university we know and love. My father was one of that first group of 24 students who enrolled in the New England University College in its commencement year. He returned as a staff member immediately after World War II, and when the University became an autonomous institution in 1954 he was elected to the University Council.

One of the big things he had taken out of his time at NEUC was the value of the personal relationship between staff and students that has become the hallmark of this university and is one of its great strengths.

So when he and his colleagues of that time had the opportunity to shape the new institution, my father, like many others, was a committed believer in the idea that the new University of New England should be a residential university. So committed was he to this idea that on his modest academic’s salary he offered me the opportunity to live in Wright College, about 400 metres from our home over the way in Handel Street. This was an opportunity that I gladly took up and for which I have been forever grateful.

My third tribute is to the many staff who over the years have laboured successfully to keep our college system going, no easy task when the higher education authorities have never exhibited much warmth toward those trying to do something new or different, nor any understanding of the particular circumstances of regional universities. I especially thank those who have surmounted all the obstacles to breathing new life into our beloved Wright College.

To the current residents, staff and students, I would say only that this is your Wright College now, and you must make of it what you will. It will not be the same as Wright College Mark I, nor does it need to be – times are different now. I guess for the many of us watching sympathetically and perhaps anxiously from the sidelines, our measure of your success will be the extent to which members of the student body decide that Wright College is to be your home while you are at UNE, and becomes a central feature of your memories of your time here.

In closing, I would just say that while it is your Wright College, I hope you will manage to feel that you are part of something which in a very direct sense began in the 1950s, and which draws a straight line back to the 1930s when an enlightened group of prominent citizens, many of them without much formal education, succeeded against extraordinary odds in establishing the first university in regional Australia.  

Thank you.

Before the ceremony

Chancellor James Harris and
Vice-Chancellor Annabel Duncan unveil the plaque

A view of one of the buildings –
in the colours of the original Wright College crest

23 March 2015

Death of Malcom Fraser

Below is the text of a media release I put out on Friday 20 March on behalf of the Campaign for for an Iraw War Inquiry/Australians for War Powers Reform following the news of the death of former Prime Minister Malcolm Fraser.

Death of Rt. Hon. Malcolm Fraser AC CH

On this 12th anniversary of the invasion of Iraq, Campaign for an Iraq War Inquiry/Australians for War Powers Reform expresses its deep sorrow at the news of the passing of Australia’s 22nd Prime Minister, Rt. Hon. Malcolm Fraser AC CH.

Mr Fraser was a foundation member of our movement, having attended in early 2012 a meeting in Melbourne which convened to consider how we might best campaign for the establishment of an independent inquiry into the decision-making process that led to Australia’s participation in the 2003 invasion of Iraq, and the relocation of the so-called “war powers” from the Executive to the Parliament.

From that time forward he was effectively the movement’s Patron. Later in 2012, in Parliament House, Canberra, he launched our publication “Why Did We Go To War In Iraq?: A call for an Australian Inquiry”. He was a strong supporter of our movement and a ready source of guidance and wise counsel.

“His support for this cause was of a piece with his staunch opposition to apartheid as Prime Minister, his humane approach to Indo-Chinese asylum seekers during his time in office, his calls for a more humane approach to asylum seekers in the contemporary era and his respect for international institutions and international law”, said Paul Barratt, President of CIWI/AWPR.

At this time of faltering foreign policy and a too-ready willingness to commit the Australian Defence Force to overseas conflicts his wisdom and ideas will be missed more than ever. His stature will undoubtedly grow in coming decades.

Many of our members and longstanding supporters have known Mr Fraser both professionally and personally over a long period of time. We shall miss him both as a friend and as a colleague, and extend our condolences to Mrs Fraser and the family.

Paul Barratt
20 March 2015

10 March 2015

Honorary Appointment

I am very happy to be able to advise that offer and acceptance formalities have now been completed for me to take up an honorary appointment as an Adjunct Professor in the School of Humanities at the University of New England.

I am pleased to be strengthening in this way a family connection with this fine institution which goes way back beyond my doing a Science degree here in the early 1960s, to a day in early 1938 when my father became the first student to enrol at the fledgling New England University College (of the University of Sydney). With the exception of the war years and sabbaticals, he spent his entire working life here, retiring as the third Professor of Psychology in 1978, forty years after his first undergraduate year here.

22 February 2015

New England Ensemble 40th Anniversary

This afternoon I had the pleasure of attending, in the Madgwick Hall at the University of New England, a concert given by the members of the former New England Ensemble to mark the fortieth anniversary of the first concert they gave on campus in 1975.

The Ensemble (Andrew Lorenz, violin; Robert Harris, viola; Janis Laurs, cello; and Wendy Lorenz, piano) was ensemble-in-residence in the University's Music Department from 1975-82 and by all accounts made a lasting contribution to the musical life of the city and the region. In returning from studies abroad to take up their appointments they became the first full time professional ensemble based outside a capital city. They achieved national and international recognition.

At this afternoon's concert they played three works that had particular significance for them:
  • Beethoven's Piano Quartet in E-flat Major Opus 16 was their first commercial recording, with the Cherry Pie label in Sydney. It went to three pressings in the first twelve months of its release.
  • Peter Sculthorpe's Landscape II was commissioned by Musica Viva for the New England Ensemble.
  • Dvorak's Piano Quartet in E-flat Major Opus 87 was the first work they performed, in the same hall, almost forty years ago to the day.
It was a great occasion, well attended by an enthusiastic audience, and it is a great pity that it had to be a one-off.

11 February 2015

Here we go again: Tony Abbott's Iraq adventure

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.

The solution

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.


01 February 2015

Jane McAdam on the High Court decision re Tamil refugees

In “Our obligations still apply despite High Court win”, Sydney Morning Herald, 30 January 2015, Professor Jane McAdam writes that the High Court decision on the detention of Tamil asylum seekers at sea turned on a technical reading of statutory provisions, not an assessment of Australia's international refugee and human rights obligations.

Professor McAdam is Scientia Professor of Law and Director of the Andrew & Renata Kaldor Centre for International Refugee Law at the University of New South Wales.

Her article begins:

The High Court has decided that the month-long detention of 157 Tamil asylum seekers at sea was legal under Australian law.

It was a narrow win for the government – three of the seven judges dissented. The decision turned on a technical reading of statutory provisions, not an assessment of Australia's international refugee and human rights obligations. It is important to understand the outcome within this context.

The decision has no bearing on the lawfulness or otherwise under international law of Australia's interception, detention and removal of asylum seekers. Australia's international law obligations have not disappeared, but current policy leaves us wide open to breaches.

She writes that Australian naval, customs and immigration officials remain bound by the principle of non-refoulement even when they act outside Australian territory or waters, because governments are responsible for the actions of their officials wherever they assert effective control, and concludes:

International law is binding on Australia. But in our legal system, courts cannot make decisions about Australia's international legal obligations unless they are also reflected in domestic law.  As Justice Keane explained in the High Court: "Australian courts are bound to apply Australian statute law 'even if that law should violate a rule of international law'."  

Australia's international law obligations to refugees and asylum seekers remain unchanged. The principle of non-refoulement continues to bind Australian naval, customs and immigration officials wherever they act. 

The fact remains that Australia is accountable internationally for its actions. 

Read Professor MacAdam’s full piece here.