Australian Greens Dissenting Report

The Australian Greens welcomed the opportunity for an inquiry into the systems and processes that Australia uses to deploy Australian Defence Force (ADF) personnel overseas. This is one of the most important decisions that a government has to make and the result of making an incorrect choice is catastrophic. We have seen the results of this poor decision-making play out repeatedly over the last quarter of a century.

In the last 25 years we have seen governments led by both major parties unilaterally wage war across the Middle East in Australia’s name without the consultation of the parliament or the consent of the Australian people. There is deep irony in the fact that the instigating factor as to whether and where Australians have been deployed since 2001 has been a vote of elected American representatives, not our own.

A Vague and Unaccountable System

What we have seen play out because of recent decisions to deploy the ADF in Iraq and Afghanistan is nothing short of a humanitarian disaster. Nowhere is this more evident than in Iraq where in 2003 the government unilaterally decided to wage a war that has left 500,000 people dead[1], millions displaced, and a country torn asunder by tensions which we unleashed. Even today as I am writing this report, Australian troops remain deployed in the Middle East under Operation Okra and Accordion. The Howard Government started this chain of events without consulting parliament, against the will of the Australian public and even without consulting the Federal Executive Council or Governor-General.

Today, there are 45 Australian families whose loved ones will never return home as a result of a secretive and unaccountable decision with no proper oversight. These families will live with this reality forever. At a bare minimum, they should know exactly who supported the deployment of troops to Afghanistan and Iraq and why.

Australia is an international outlier on transparency

Australia is relatively unique among democratic countries in its lack of parliamentary authorisation or oversight on military deployments overseas. For example:

• The United States and France require congressional approval for use of military force, declarations of war and notification of any deployments
• Germany, Denmark, Ireland, Spain, Norway, and Sweden require parliamentary approval for troop deployments overseas

Since our inception, the Australian Greens have pushed for more accountability and transparency in how Australia makes this important decision. We will continue to push for a system that requires both the consent of the people and consultation of parliament to determine how and when Australia goes to war.

Response to Recommendations

The Australian Greens emphatically reject the conclusions made in Recommendation 1:

• The Committee recommends that in implementing these recommendations the Government reaffirm that decisions regarding armed conflict including war or warlike operations are fundamentally a prerogative of the Executive, while acknowledging the key role of parliament in considering such decisions, and the value of improving the transparency and accountability of such decision-making and the conduct of operations

The Australian Greens agree with the following recommendations in principle, but believe that these are the bare minimum:

Recommendation 3

• The Committee recommends the Government include a new section in the Cabinet Handbook outlining expectations for practices to be followed in the event of a decision to engage in major international armed conflict including war or warlike operations

Recommendation 4

• The Committee recommends that the Government introduce Standing resolutions of both Houses of Parliament to establish Parliament’s expectations in relation to accountability for decisions in relation to international armed conflict, providing for sensible exemptions to enable timely and flexible national security responses and requiring at a minimum that, when war or warlike operations are occurring:

• A Statement to both Houses of Parliament be made at least annually from the Prime Minister and Government Senate Leader and debate facilitated
• an update to both Houses of Parliament be provided at other times during the year (at least twice) from the Minister for Defence and Minister representing the Minister for Defence in the other Chamber and debate facilitated

These practices should be replicated in the Cabinet Handbook

Recommendation 5

• The Committee recommends the Government:

• Revert to a traditional approach whereby Defence white papers and national security or strategy updates should be tabled in both Houses of Parliament within 30 days of their presentation to the Minister
• Consider mechanisms to codify this practice, such as embedding them in the Cabinet Handbook or by Standing Resolutions of both Houses of Parliament

The Australian Greens agree in principle to Recommendations 2 & 6, but wish to provide the following comments

Recommendation 2

We have serious concerns about the government’s interpretation of Section 8 of the Defence Act as an alternative to Section 68 of the Australian Constitution in regard to conflict decision making. Any and all advice that the government has supporting this interpretation should be released to the Australian community.

This is a matter that would benefit from formal consideration by the High Court. While the Australian Greens accept that the court will likely not entertain an advisory opinion, there is a strong public interest in the matter being authoritatively determined. A possible vehicle for that would be an application to consider the domestic legality of the Howard Government's decision to use section 8 of the Defence Act regarding the deployment of Australian Defence Force personnel as part of the 2003 United States led invasion in Iraq and determine the legality of that deployment.

The Australian Greens agree that as a bare minimum a written statement should be tabled outlining strategic goals, orders given, the legal basis of any operation and a humanitarian impact statement. Additionally, this statement should outline the support which will be provided to veterans on return from service.

Recommendation 6

The Australian Greens would support this recommendation if it included a legislated requirement for crossbench members from both houses of parliament to be members of the committee. Explicitly, this committee should in no way infringe upon the oversight role of the Senate committee or the Senate Estimates process.

Australian Greens Additional Recommendations

• Parliament should pass Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020 requiring a joint sitting of parliament to approve Australian Defence Force deployments overseas
• The Defence Act of 1903 should be amended to explicitly limit Ministerial Power from unilaterally deciding on offensive troop deployments
• Legal Advice given to the Howard Government and Cabinet, the Governor-General and Federal Executive Council should be made publicly available so that Australians can determine for themselves what was understood about entering Iraq
• Any and all legal advice the government has or has sought on its interpretation of Section 8 of the Defence Act as an alternative to Section 68 of the Australian Constitution should be made publicly available

• Any statement tabled in Parliament regarding the strategic and legal basis of an operation should also include intended support for veterans and humanitarian impact

Senator Jordon Steele-John31 March 2023

Footnotes

[1]Study: Nearly 500,000 perished in Iraq war | UW News (washington.edu)