11 August 2023
PDF Version [521KB]
Nicole
Brangwin
Foreign Affairs, Defence and
Security
Introduction
Over the last few years, government policy documents on
defence strategy,
planning
and reviews
have warned Australia’s strategic and defence environment is deteriorating, justifying
significant expenditure on weapons, equipment and capability enablers.
However, the role of the Australian Parliament to scrutinise government
decisions on expenditure and related defence activities can be challenging.
This is due to the complexity
of issues within the Defence portfolio – significant budget allocations, a
large multi-disciplinary uniformed and civilian workforce, procurement cycles
that span decades, technologically advanced equipment, and operations ranging
from combat and peacekeeping to humanitarian and disaster relief. To add to
this complexity, Defence operates in a secretive
environment, which can lead to publicly available information
being heavily redacted and restricted public discourse and debate due to operational
security (p. 14) and commercial-in-confidence
considerations (pp. 2–3; 10). Additionally there is a broad understanding
of bipartisanship on defence-related matters (p. 8) among the major parties
in Parliament. Consequently, defence
is often a low-priority (p. 13) topic during election campaigns and an area
of interest for only a small number of parliamentarians in the Australian
Parliament.
These factors can constrain the
ability of parliamentarians to conduct reasonable
scrutiny of the Defence organisation in the parliamentary setting. While
there are great opportunities for parliamentarians with no military background
to better understand how the military operates, such as the annual Australian
Defence Force Parliamentary Program, the diversity of issues relating to
Defence, as well as the sensitive nature of Defence-related information, can
make it difficult for parliamentarians to adequately comprehend, let alone
scrutinise, key issues as they arise.
Former Australian Army officer and national security expert James Brown noted in his
2016 Quarterly Essay, Firing
line: Australia’s path to war, that very few politicians, particularly
prime ministers and members of the National Security Committee of Cabinet, ‘come
to the role with an understanding of military matters, and other than on the
job there are few places they can acquire this knowledge’. Brown highlighted
that ‘Australian politicians are less likely to have had experience in the
military, or working on military issues, than their counterparts in other
countries’. Typically the proportion of parliamentarians with military service
experience is low. In the current 47th Parliament, 19
out of 227 parliamentarians have some level of military service experience.
While military experience is not critical to parliamentary oversight of the
Defence organisation, it allows at least some degree of intuitive understanding
of national defence and a certain level of insight into and knowledge of the language
and terminology used by Defence (p. 169). Former
senator, John Hogg, described the Senate Estimates experience with
Department of Defence officials:
Answers to questions can be very evasive by placing the
slightest variation on the meaning and interpretation of whole or parts of the
question asked so as to render the question useless. Refuge can be sought in
the smallest of technicalities (p. 170).
While there is the potential for issues to get lost in
translation, Senate Estimates committee hearings allow more focused lines of
questioning to government senators and department officials and participation
is open to all senators. The parliamentary chambers also provide
opportunities to question government policy and decision-making through
questions on notice, question time and responses to ministerial
statements. However, the latter is often restricted by time and can limit
the number
of respondents.
Current committee oversight of
Defence
The structure of the Australian parliamentary committee
system provides several avenues for scrutiny of Defence activities, but these
are spread across a variety of committees with different functions, roles and
membership. For instance:
The coverage of inquiries across so many different
committees makes it difficult for parliamentarians to comprehensively
scrutinise government policy and decision-making in relation to the performance
and activities of the Defence organisation. As suggested
by James Brown, ‘when so much defence decision-making is based on
classified assessments and considerations routinely unavailable to members of
the opposition, there is a role for a body that can equip parliamentarians to
discuss national security policy’.
A Joint Defence Committee of
Parliament?
Recent high-profile matters (such as the outcome
of Ben Roberts-Smith’s defamation case and Australia’s acquisition
of nuclear-powered submarines) have renewed
calls for greater parliamentary scrutiny of Defence. Proposals include the
establishment of a parliamentary committee with the authority to consider
sensitive matters within the Defence organisation that is modelled on the Parliamentary
Joint Committee on Intelligence and Security (PJCIS) or the influential US
Armed Services committees (Senate
and House).
Committee recommendations
Over the years, several parliamentary committees have
recommended the establishment of a more powerful Defence committee to provide
greater scrutiny by the Australian Parliament.
The November 2018 report of the Joint Standing Committee on
Foreign Affairs, Defence and Trade (JSCFADT) Inquiry
into the benefits and risks of a bipartisan Australian defence agreement, as a
basis of planning for, and funding of, Australian defence capability
recommended a Joint Parliamentary Committee on Defence be established by
legislation that is similar in function to the PJCIS. The new committee would
have the power to consider ‘any aspect of Defence planning, strategy
development, administration and expenditure’ and be permitted access to
classified information to allow the committee to undertake its role. The report
recommended the committee members be nominated by the prime minister and the
government leader in the Senate and then appointed via a resolution in the
House and Senate respectively. The government would hold the majority of the 15
member seats on the committee.
The most recent naval
shipbuilding inquiry report (May 2022) recommended the establishment of a
Joint Select Committee on AUKUS ‘to examine in detail the progress of the
nuclear submarine acquisition and other related matters’ including the
diplomatic, financial and strategic implications of AUKUS arrangements. The Albanese
Government’s response noted the inquiry’s recommendations, which were to be
considered by the Defence strategic review (DSR). The public
version of the DSR was released on 24
April 2023, but did not include any references to Parliament or the
establishment of a committee.
The March 2023 report of the Inquiry
into international armed conflict decision making by the JSCFADT made a
similar recommendation to establish an 11-member (6 government and 5
non-government) Joint Statutory Committee on Defence via legislation. The
committee’s functions would permit oversight and scrutiny of a range of matters
within the Defence portfolio, such as annual reports; high level policy
documents (for example, white papers, strategies and plans); capability
development, acquisition and sustainment; personnel and veterans; matters
referred by the minister or the Parliament; and war or warlike operations.
While there would be restrictions on the committee’s access to certain
classified material, and veto power by the defence minister, the committee
could request and receive classified information.
Proposed legislation
Senator David Fawcett’s Private Senator’s Bill, Defence
Capability Assurance and Oversight Bill 2023,
proposes the creation of a Defence Capability Assurance Agency (DCAA), an
Inspector-General of Defence Capability Assurance (IGDCA) and a new
Parliamentary Joint Committee on Defence. With regard to the latter, the Explanatory
Memorandum states the proposed legislation:
… creates a Parliamentary Joint Committee on Defence (PJCD)
which would have amongst other tasks, oversight of the DCAA. A PJCD was a
recommendation of a bi-partisan report of the Joint Standing Committee on
Foreign Affairs, Defence and Trade (JSCFADT) in November 2018. Established along
similar lines to the PJCIS, the PJCD would have the span of functions outlined
in the November 2018 report as well as specific oversight over capability
acquisition, which would include Australia’s involvement in AUKUS, and the
operation of the DCAA and the IGDCA.
Clause 98 of the Bill would require security clearances for
PJCD staff and at least one supporting staff for each committee member. The
proposed legislation would not require committee members to hold a security
clearance.
The Bill proposes strong measures to allay concerns about
the PJCD’s capacity to appropriately handle sensitive information. The Senate
Standing Committee for the Scrutiny of Bills raised concerns about these
measures following its consideration of the Bill on 14 June 2023 (see Scrutiny
Digest 6 of 2023). The Scrutiny of Bills Committee assessed that some of
the offence provisions in Division 4 might raise concerns ‘in relation to
significant penalties which have not been justified within the explanatory
memorandum’. The penalties proposed in the Bill are similar to PJCIS-related
offences in Part 2 of the Intelligence
Service Act 2001. The Bill proposes penalties ranging from 6 months to
5 years in prison for offences relating to the security of information
provided to the committee, as well as witness protection, attendance at
committee hearings and knowingly providing false or misleading information to
the committee. The proposed PJCD would report to Parliament on its activities
via an annual report.
Government response to JSCFADT
recommendation
As noted above, the March 2023 report of the Inquiry
into international armed conflict decision making by the JSCFADT
included under Recommendation 6 the establishment of a Joint Statutory
Committee on Defence (pp. xv–xvi).
On 8
August 2023 the Albanese Government accepted this recommendation and agreed
to ‘the establishment of a new Joint Statutory Committee on Defence, with
further work to be undertaken to determine implementation details’. The Government
response to Recommendation 6 noted:
… that this would be a significant change to existing
arrangements and, therefore, that further work will be required to determine
the precise scope, powers and functions of the proposed committee, particularly
to avoid the potential for duplication and/or overlapping responsibilities with
existing committees.
The Government will conduct further work in a timely manner
to determine the scope of the proposed committee and its appropriate powers and
functions.
While the Government has accepted the JSCFADT
recommendation, the wording of Recommendation 6 is lengthy and descriptive. The
outcome of further work on this matter will determine whether enacting
legislation mirrors that description of a Joint Statutory Committee on Defence.
Summary
Given the models proposed for a dedicated parliamentary
committee on defence, the Government will likely consider whether a more
powerful defence committee in the Australian Parliament should replace the
defence aspects of the Joint and Senate Foreign Affairs, Defence and Trade
committees, potentially streamlining reporting obligations by the Defence
organisation. Senate Estimates processes would most likely remain unaffected.
The potential gains might be that such a committee has the
potential to examine key issues more effectively as members, staff and the
secretariat supporting the committee would have a greater understanding of
Defence and the broader strategic factors that impact activities. Access to
classified information and briefings, to some extent, would allow for a
better-informed committee, resulting in a greater level of scrutiny and
contestability. The potential downsides could see similar tensions to those
experienced by the PJCIS
about membership options for crossbench parliamentarians and the potential
for criticisms that the major parties limit robust public debate through
bipartisan agreements and in-camera briefings.
Given Australia’s deteriorating
strategic circumstances and significant partnership arrangements under
AUKUS, there is an even greater focus on Defence capabilities. As such,
parliamentary scrutiny is vital to ensuring oversight of government decisions
and constructive contestability of the long-term trajectory of Defence
capabilities being pursued in Australia’s national interests.
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