3. Parliamentary oversight of decisions relating to armed conflict
   1. In the context of the Committee’s findings and recommendations in Chapter 2, this chapter considers how parliamentary engagement in decisions relating to armed conflict and the subsequent conduct of operations could be strengthened as well as general improvements to parliamentary oversight of Defence.

Previous instances of parliamentary engagement in armed conflict

3.2Chapter 1 provides an outline of the ten prior instances where Australia has formally engaged in international armed conflict. Further information in relation to these events can be found in Appendix C, including the history of parliamentary motions on each occasion and other relevant details.

3.3In general, previous decisions to go to war or conduct warlike operations often (but not always) have been accompanied by formal and informal consultation between the Executive and the Parliament, either before a formal decision by the Executive is made or afterwards. This was particularly the case after World War II, where the Opposition of the day began to suggest that Parliament should be consulted. Consultation was generally accomplished via formal debate in the Houses of Parliament, or – more commonly – it was informally practiced ‘behind the scenes’ between the Government of the day and the Opposition.[1]

3.4Examples of prior parliamentary consultation regarding the commitment to war or warlike operations include:

• recalling Parliament within a short timeframe after a decision to declare war or conduct warlike operations has been announced[2]
• forming Cabinet subcommittees or other forms of committees to monitor the operation’s progress and provide input[3]
• discussing the matter in Parliament, including on motions relating to ministerial statements on the conflict in question
  5. Of the ten instances where the Australian Government has decided to engage in international armed conflict or conduct warlike operations, there are identifiable trends in how the Parliament has engaged with the issue.
  6. Firstly, in virtually every instance, the Executive had already formed the view, and made the decision, to go to war or to undertake warlike operations prior to the matter being brought to the Parliament in any form.
  7. Secondly, in most cases the Opposition of the day had been supportive of the Government’s actions to go to war or engage in warlike operations (particularly in the early history of the nation, such as the two World Wars). However, there have been increasing instances of non-government parliamentarians expressing opposition to Australia’s participation in the relevant conflict, such as in Malaya, Vietnam and Iraq. Another approach taken by non-government parties or independent parliamentarians suggests the Parliament should be consulted on war operations, which occurred in debate during World War II.
  8. Finally, the most common form of parliamentary mechanism which enables parliamentarians to engage with the topic is a motion ‘that the paper be printed’ when discussing a ministerial statement or paper. This provides parliamentarians with the opportunity to debate the contents of the motion, and was recognised by former Speaker, the Hon. Archie Cameron, in 1955 as ‘only a formal method of securing debate’.[4] While such motions are generally agreed to without the need for divisions, they can also be amended by a protesting Opposition or other non-government parliamentarians and passed in a form to oppose warlike engagement; such an instance occurred in 2003, where the Senate motion in relation to the Iraq War was amended by the Opposition and minor parties to express their opposition.

Increasing parliamentary engagement and Executive accountability

3.9While much of the evidence received during the inquiry focused on proposed changes to decision-making before the deployment of armed forces to international conflict, some stakeholders also raised the need for ongoing public accountability of the Executive to the Parliament as a conflict continued.

3.10Increased parliamentary engagement and debate both regarding decisions taken by government and subsequently was argued to have a range of positive aspects and benefits by stakeholders, noting that Parliament’s responsibilities do not end after debating a decision to enter into armed conflict. Key arguments included:

• reflecting public support for increased parliamentary engagement, particularly in relation to decisions regarding international armed conflict
• improving the perceived ‘quality’ of decision-making when considering issues involving armed conflict
• enhancing transparency and accountability of the executive branch of government and the Defence sector
• building community support for potential military action or conflict
• ongoing accountability of Executive Government for the conduct of military operations

Public support for increased parliamentary engagement

3.11Public polling regarding parliamentary engagement in relation to international armed conflict decisions indicates that submitters’ general support for reform is broadly reflective of the Australian community. The Australians for War Powers Reform noted that several recently conducted polls indicate that there is widespread support for change, including:

• A 2021 Digital Edge poll finding that 87 per cent of Australians agreed with the proposition that ‘war decisions should be subject to parliamentary approval always or unless there is immediate danger to Australia’[5]
• Roy Morgan research conducted in 2020 which identified that 83 per cent of respondents supported reforms to require parliamentary approval prior to any decision being taken[6]
  12. Witnesses also pointed to previous public demonstrations of public sentiment, particularly during the 2003 Iraq conflict, as examples of public opinion being misaligned to the Executive’s decision.[7]

Improving accountability for decision-making

3.13Some witnesses put the view that increased parliamentary engagement may result in better decision-making in relation to armed conflict and warlike operations. MrScottMacInnes argued that ‘there needs to be many more checks and balances and more opportunities for genuine well-informed debate, if we are to make sounder judgments’. He put the view that the small number of people involved in decisions relating to armed conflict resulted in decision-making which is often ‘narrow’ and of low quality given the consequential outcomes.[8]

3.14Similarly, while arguing in favour of Parliament having a formal role in decision-making, Professor George Williams argued that parliamentary engagement would increase the quality of decision-making due to the importance of deliberation by a large number of people.

It really gets down to the basic proposition that this is a really important decision when ’t's made, one of the most important a nation will make. What’s the way to get the best quality of decision? We would say parliament should be involved for quality reasons. Deliberation is important, more than a closed cabinet room or a small group of people.[9]

Enhancing transparency and accountability of the Executive

3.15A significant majority of stakeholders argued that increased parliamentary engagement and potential involvement in the decision to go to war or conduct warlike operations would enhance transparency and accountability of the Executive branch of government.[10] Some submitters criticised the ‘secrecy’ culture that was said to permeate in Australian government and institutions, which resulted in lack of transparency and poor decision-making.[11]

3.16It was asserted that a lack of open transparency and accountability in the past had not led to positive outcomes in the context of international armed conflict:

Looking back at all the conflicts that Australia has been involved in, there is no indication that keeping secrets led to, or would have lead (sic) to better decision making, or would have caused any real strategic disadvantage to Australia in the conflict. In fact, a more transparent process might have avoided the grave waste of Australian lives - for example, with the War in Iraq, which as we know now was entered into based on false intelligence about non-existent weapons of mass destruction. A more transparent debate and a vote might have avoided participation in such a pointless conflict.[12]

3.17Similarly, decisions to enter into international armed conflict were said to have been ‘made mostly in secret by a very (sic) few people, based on information that they wanted to keep secret’.[13]

Building community understanding and support for deployed forces

3.18Many stakeholders argued that increased parliamentary engagement would provide a forum in which the community could learn more about the proposed conflict and potentially provide support for the armed forces. A range of stakeholders argued that increased parliamentary engagement could require the government to explain to the Parliament the reasons for entering into international armed conflict. This would enable the Parliament, and thereby the public, to understand the reasoning behind the proposal. It would also permit the Executive to ‘put its case’ to the Parliament and the public at large, in addition to demonstrating its intentions to international partners.

3.19The importance of building support for the armed forces and the mission at hand was deemed particularly important to the success of the operation and the mindset of the ADF personnel involved. Mr Allan Behm, Director of the International and Security Affairs Program, The Australia Institute, stated:

We have an all-volunteer Australian Defence Force. It is a defence force which is deeply enmeshed in the community. It belongs to the community, as indeed does the parliament and its representatives. For that reason alone, it seems to me that any decision taken by the executive that involves the deployment of our young people in places where there is a fair chance that they might be injured or killed is something which is of much broader significance. It is worth the time and the effort of the parliament to consider it and to talk about it.[14]

3.20Similarly, Professor Moore put the view that community support, expressed via parliamentary engagement, can have a significant impact on the outcomes of operations by way of providing legitimacy for the operations.[15] Professor George Williams concurred with this view, arguing that community respect and confidence for armed force service people can be impacted due to a perceived lack of accountability, such as the UK public’s reaction to the Iraq War. He further stated:

One of the parliament’s main functions is … to build community confidence in contentious and difficult areas by demonstrating that the people’s representatives have gone through a deliberative process and listened to the arguments publicly and transparently. That’s the way we as a community resolve issues and move forward. It’s when there’s the absence of that, as we’ve seen in Iraq, Vietnam, and other contexts—there are a number of them—that, in fact, sometimes it’s much more difficult, I think, to actually sustain community confidence. Again, that’s the UK experience. It’s why they’ve gone down this path because the response to the Iraq conflict was the deep divisions, the anger, the bitterness, and the disharmony. They felt it demanded a better process in order that decisions are better made, and that people can live with the consequences more ably than under the old system.[16]

Opposition to increased parliamentary engagement

3.21Defence was one of a small number of witnesses who urged against changing current decision-making arrangements and in any way constraining executive prerogative, however the Department did not oppose or express a view on the possibility of improving accountability to Parliament and parliamentary oversight.

3.22The Department explained that it currently engages with the Parliament via a range of mechanisms, including:

• parliamentary committees which play an oversight role, including the Joint Standing Committee on Foreign Affairs, Defence and Trade and the SenateStanding Committee on Foreign Affairs, Defence and Trade (SenateFADT Committee)
• the Senate estimates process
• parliamentary motions, such as urgency motions and Question Time, which enable scrutiny of the Executive[17]
  23. This point was also noted by Mr Justin Bassi, Ms Bec Shrimpton and Dr Alex Bristow, who pointed to the findings of the 2021Senate FADT Committee’s inquiry, which stated that current parliamentary processes already provide a multitude of ways to scrutinise the deployment of ADFtroops via mechanisms such as Question Time, motions, Senate estimates and committee inquiries. These tools were said to form ‘part and parcel of Government accountability to Parliament and the Australian people’.[18]
  24. Defence also argued that historical practice, where the Parliament has been consulted informally despite having no legal obligation to do so, should not be amended. It stated:

Defence assesses these decision-making arrangements remain appropriate and recommends against any changes. These arrangements enable timely and flexible decision making, as well as the necessary confidentiality of highly classified information. Any shifts could lead to potential implications for: the ADF’s operational security; the ADF’s relative strategic and tactical advantages over adversaries; and Australia’s international credibility as a security and intelligence partner.[19]

3.25Defence’s primary objection was in relation to proposals to require a parliamentary vote to authorise actions, which was discussed in Chapter 2.

3.26Other submitters observed that while parliamentary engagement should be strengthened to improve accountability and transparency, it does not guarantee the quality of debate or the decisions involved. Professor Fernandes noted that the Parliament debated and voted on motions relating to the Vietnam War, often indicating support for continued involvement.[20] However, it provided the Opposition the capacity to indicate their disapproval of the commitment of ADF personnel and resources, which was expressed during debate on motions regarding ministerial statements on Vietnam.[21]

Methods of parliamentary engagement

3.27A range of methods was suggested by inquiry stakeholders which would increase parliamentary engagement in relation to decisions regarding international armed conflict and warlike operations. This section outlines proposals to enhance parliamentary involvement in decisions involving international armed conflict priorto or at the time that the decision is made by the Executive.

3.28The key mechanisms suggested, which will be discussed in detail below, include:

• a mandatory recalling of the Parliament upon the declaration of war, or where the Executive wishes to consult the Parliament prior to entering armed conflict
• requiring a statement of the reasons for the conflict, including certification of compliance with international law
• a requirement that either or both Houses of Parliament debate the proposal
  29. In addition, consideration of whether a specialised committee with powers to consider Defence matters including those relating to international armed conflict is discussed later.

Recall of Parliament

3.30The recall of the Parliament (assuming it is not sitting at the time) at a date as soon as practicable was suggested as a means of involving the Parliament in the decision-making process.[22] This could play two key functions in enhancing parliamentary engagement: it would ensure that the Parliament was able to consider and potentially debate the proposal at the earliest opportunity, and also that it would provide information to the public via a ministerial statement to the Parliament.

3.31Requirements to recall the Parliament within a defined timeframe are also present in overseas jurisdictions, such as the Canadian Parliament.[23]

Requiring an explanation

3.32One of the most common suggestions for reform was introducing a requirement for the Executive to provide an explanation to the Parliament as to the reasons for entering a conflict or conducting an operation.

3.33Submitters raised concerns there is currently no obligation on the Executive to provide Parliament with a formal explanation as to the reasoning for entering an international armed conflict. Moreover, while this has been practiced informally over time, it has been inconsistent in terms of how regularly the Executive has provided an explanation and how fulsome that explanation has been.

3.34Stakeholders provided a range of lists of criteria which should form the basis of an explanation provided to the Parliament.[24] Common questions or themes included:

• the aim or objective of the operation
• whether and why the proposed operation was considered necessary as opposed to diplomatic avenues of de-escalation
• the details of what the ADF was expected to be providing to the operation, including types of units, whether operating as part of a joint operation, and the number of personnel involved
• the associated costs and risks of the proposed operation (including potential civilian and personnel casualties, impact on personnel mental health and budgetary considerations)
• the expected duration of the operation

Previous examples of Government explanations

3.35There have been previous instances where the Executive has explained to the Parliament the reasons for conducting an operation or engaging in armed conflict. For example, former Prime Minister John Howard provided an explanation to the Parliament after the announcement of the commitment of troops to the US-led invasion of Iraq.[25]

3.36Similarly, in 2014, in a statement to the House of Representatives, former Prime Minister Tony Abbott presented a set of considerations to determine when deciding whether to engage in armed conflict in the context of a potential further commitment in Iraq:

Should such a request come from the Obama administration, and be supported by the government of Iraq, it would be considered against these criteria: Is there a clear and achievable overall objective? Is there a clear and proportionate role for Australian forces? Have all the risks been properly assessed? And is there an overall humanitarian objective in accordance with Australia’s national interests?[26]

3.37Submitters also pointed to the example set in 2010 where the Australian Government outlined the reasons for continued ADF involvement in the Afghanistan conflict in a statement to Parliament. In her speech, then Prime Minister Julia Gillard stated:

A national government has no more important task than defending the nation, its people and their interests. That is why we take so seriously any decision to go to war. The war in Afghanistan is no different. Today I will answer five questions Australians are asking about the war:

• why Australia is involved in Afghanistan;
• what the international community is seeking to achieve and how;
• what Australia’s contribution is to this international effort—our mission;
• what progress is being made; and
• what the future is of our commitment in Afghanistan.[27]
  38. Ms Gillard acknowledged that, given ADF personnel were still involved in operations, she must be ‘responsible in how much I say’, potentially indicating issues regarding intelligence. However, she emphasised the importance of openness and transparency in the Government’s approach to the ongoing conflict:

…in answering those questions, I want to be as frank as I can be with the Australian people. I want to paint a very honest picture of the difficulties and challenges facing our mission in Afghanistan. The new international strategy and the surge in international troops responded to a deteriorating security situation. This means more fighting, more violence. It risks more casualties. There will be many hard days ahead.[28]

3.39Several stakeholders suggested that the precedent set by Ms Gillard should be adopted as the accepted standard in future for the Executive, which would provide it with the opportunity to explain to the Parliament and the public the reasoning behind the proposed decision. Mr Graeme Dobell also noted that such a standard should continue the precedent’s aim of establishing the ‘fundamentals—aims, means and ends’, even if the conflict in question was already afoot.[29]

Compliance with international law

3.40The importance of armed conflict-related decisions’ compliance with international law was a key theme of importance. Professor Ben Saul noted that, while there are likely to be situations which are uncontroversial legally (such as self-defence against armed attack on Australian territory), there were others that may be less clear under international law, including:

… humanitarian intervention, protection of nationals, hostage rescues, anticipatory or pre-emptive self-defence, expansive self-defence against terrorism, countering the use of chemical, biological or nuclear weapons, punitive reprisals, intervention in civil wars, covert operations, and regime change.[30]

3.41Professor Saul argued that any proposal by the Executive to engage in armed conflict or conduct other warlike operations should be required to table a Statement of Compatibility with International Law, which would outline the proposed action’s compliance with article 2(4) of the UN Charter.

3.42Detailed advice regarding the legal validity of the decision to go to war or conduct warlike operations was argued by Professor Saul to be critical for bolstering both the public’s confidence and ‘political legitimacy’ in the decision. He posited that, in determining whether to engage in conflict, a government would receive ‘extensive legal advice about all aspects of military deployments—the use of force, international humanitarian law, criminal law, the full range’, and that making such advice public would be ‘a really progressive and valuable step’.[31] He also noted that such detail would ensure that legal liability issues regarding Australian operations, officials and personnel could be addressed.[32] Professor Saul also suggested the Statement of Compatibility should also include information on two legal issues:

(i) Any international legal risks arising from joint operations with coalition forces, as where a partner state uses weapons which are prohibited by treaty for Australia to use (such as cluster munitions or landmines); or uses means or methods of warfare which exceed Australia’s interpretation of what is permitted under international humanitarian law (IHL) or Australian rules of engagement (including regards targeting, and assessing the proportionality of civilian casualties); and

(ii) What preparatory and operational measures Australia has, or will, put in place, given the risks in the particular conflict, to ensure that Australian forces will comply with IHL, international criminal law and international human rights law. These may include, for example, additional, tailored training on the IHL rules on the conduct of hostilities or treatment of prisoners; the availability of legal advisers on operations; and robust procedures for reporting and promptly investigating suspected violations in the field, and ensuring criminal accountability and other remedies (including compensation for victims).[33]

3.43Despite this view, Professor Saul recognised that this model could potentially allow a government to ‘whitewash’ legal advice, noting that in 2003 the UKAttorney-General’s advice on the legal validity of the Iraq War ‘omitted his private warning that the UK risked committing aggression’.[34] Nonetheless, he argued that the disclosure of legal advice to the Parliament would at least provide a mechanism for scrutiny and debate.

Requirement to debate

3.44Most submitters in favour of increased parliamentary engagement were supportive of introducing a formal requirement for the Parliament to debate major military actions. While convention generally permits debate on motions in relation to armed conflict, there is currently no formal requirement to provide for parliamentary debate.[35] This also applied to related matters, including the acquisition of Defence projects which can be used during warfare.[36]

3.45The risk of having no or highly limited debate in Parliament was highlighted by the Medical Association for Prevention of War (Australia), which stated:

Australia’s involvement in the Afghanistan war received no meaningful debate in parliament as to its likely impacts or even its purpose. The war was initially said to be to “smoke them [al Qaeda] out of their holes”, then to “prevent Afghanistan from again becoming a training ground for terrorists”, then to “stabilise Afghanistan”, then to “improve the lives of the Afghan people”. The appalling lack of strategy and monitoring of civilian welfare by the US-led coalition ended in the tragic situation in which the Afghan people now find themselves. It is estimated that more than 70,000 civilians were killed in the Afghanistan/Pakistan warzone since 2001.

While both major parties supported the Afghanistan war, the absence of debate in parliament ensured that other views would not be heard and addressed, key questions would remain unasked and unanswered, shifting goalposts were accepted with apparent equanimity, and mounting civilian casualties were kept out of the spotlight.[37]

3.46The Australia Institute noted that in recent times there has been an emerging convention in the UK Parliament that enables the House of Commons to have the opportunity to debate a proposed action, although the results of the debate are not binding on the Executive. Nonetheless, it appears that the results are generally respected by the Government, such as in 2013 when then Prime Minister David Cameron did not proceed with planned military action in Syria after the House of Commons voted against the proposed action.[38]

3.47Professor Ben Saul stipulated that, assuming the Executive provides an explanation for its proposed course of action, Parliament should ‘have the opportunity to debate the Statement, including by tabling independent legal opinion, or holding a committee inquiry to call legal experts to consider the Executive’s Statement’.[39]

3.48Parliament’s responsibilities do not end once the initial decision to go to war is made.

After initial deployment, we might get a better understanding of rationale, objectives, cost, and legality. We may also become aware of objectionable features, such as war crimes (e.g., torture at Abu Ghraib) and illegal weapons (e.g., cluster munitions). Parliament should be required to take responsibility for an active decision to extend deployments and engagements in international conflict. Formalised official parliamentary scrutiny of ongoing conflict might also help structure rational decision making as objectives change. Rather than allowing mission-creep to bleed from an initial rationale to a later set of objectives without examination, formal review, and transparent debate by both houses of parliament could help ensure that these changes are well understood and deliberatively evaluated.[40]

3.49Ongoing reporting to the Parliament was suggested as an important mechanism in improving accountability and transparency in relation to international armed conflict decision-making. Mr Graeme Dobell noted the precedent set by former PrimeMinister Julia Gillard, where – upon addressing Parliament on the Afghanistan conflict – she stated:

‘[T]oday I announce as Prime Minister that I will make a statement like this one to the House each year that our Afghanistan involvement continues. This will be in addition to the continuing ministerial statements by the Minister for Defence in each session of the parliament.’[41]

3.50A range of other suggestions were raised in how the Parliament may be better engaged in the oversight and scrutiny of an ongoing conflict or operation, including:

• creating a mechanism which works to automatically create a standing reference to the Joint Standing Committee on Foreign Affairs, Defence and Trade whenever Australian forces are deployed overseas, which could include holding annual hearings with the Chief of the ADF and the Secretary of Defence to provide public evidence ‘on the deployment or conflict and how the aims of the mission are being met’[42]
• regular briefings to a specialised committee, subject to national security considerations (see below for discussion of a specialised committee)
• resuming the practice of presenting Defence white papers to the Parliament[43]

Committee comment

3.51The Committee is firmly of the view that parliamentary engagement and oversight must be strengthened in relation to decisions by the Executive regarding international armed conflict and the subsequent ongoing conduct of such operations.

3.52Reforms to improve parliamentary engagement would draw Australian practice closer to that of similar Westminster jurisdictions and improve democratic accountability of the Executive to the Parliament.

3.53The Executive should be accountable to the Parliament and the public for its actions, providing a clear rationale for its decisions in relation to armed conflict, the objectives and legality of such conflict. There is and would be no prohibition on the Executive bringing forward a debate if it wished to do so prior to taking a decision in relation to armed conflict including war or warlike operations; however, the ordinary practice is for the Executive to advise the Parliament of decisions taken.

3.54There should also be improvements to parliamentary engagement and oversight of the subsequent management of any conflict.

3.55The 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. This should include:

• a requirement that the Parliament be recalled as soon as possible to be advised, unless this was not possible due to extenuating and appropriate circumstances (e.g., it was unsafe for the Parliament to meet due to conflict)
• a requirement that the Executive facilitate a debate in both Houses of Parliament at the earliest opportunity, either prior to deployment of the Australian Defence Force or within thirty (30) days of deployment. Debate should occur after a formal ministerial statement is made which explains the reasons for the operation, based on the 2010 Gillard model, as well as a statement of compliance with international law and advice as to the legality of the operation

These practices should contain the caveat that the Governor-General is able to approve deferral of any of these requirements in specific circumstances, such as high risks to national security or imminent threat to Australian territories or civilian lives.

3.56While there have been various approaches to accountability and parliamentary engagement during periods of armed conflict, the Committee considers these expectations as to parliamentary accountability should be formalised as outlined below.

3.57Parliament and the public have every right to expect a Government to be and remain accountable for the conduct of military operations and engage in ongoing reporting whenever ADF personnel are deployed internationally, and especially so in relation to major conflicts, war or warlike operations.

3.58The Committee considers the precedent set by former Prime Minister Gillard should be formally recognised and codified as the minimum standard which the Parliament expects in the future. This would set a minimum requirement for a Prime Minister to provide an annual Statement to Parliament and the Minister for Defence to provide an update during each session codified in the Cabinet Handbook and via Standing Resolutions of each House of Parliament.

3.59In addition, the Committee acknowledges evidence which suggested that the practice of tabling Defence white papers and other national security or strategic updates for debate in the Parliament has fallen away in recent years. Returning to the practice of tabling these documents for parliamentary debate is appropriate and respectful of the Parliament and would assist in fostering deeper parliamentary engagement and knowledge of strategic issues and promoting transparency in defence.

3.60The Committee recommends 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 PrimeMinister 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.

3.61The 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 and apply mechanisms to codify this practice, such as embedding them in the Cabinet Handbook or by Standing Resolutions of both Houses of Parliament

A new Joint Statutory Defence Committee

3.62The current parliamentary committee system does not specifically address how major armed conflict including war or warlike operations can or should be subject to appropriate parliamentary oversight.

3.63There are two parliamentary committees within the Australian Parliament with broad oversight functions of the Defence portfolio: the Joint Standing Committee on Foreign Affairs, Defence and Trade (JSCFADT), and the Senate Standing Committee on Foreign Affairs, Defence and Trade, plus the Parliamentary Joint Committee on Intelligence and Security (PJCIS) which oversights intelligence related functions of specific Defence portfolio agencies. Neither these committees are specifically empowered to examine matters relating to major armed conflicts or war or warlike operations and neither of the two Defence portfolio related Committees are empowered or equipped to receive classified information, instead being confined to examinations of the Defence portfolio via inquiries, consideration of the Department’s annual report, and Senate estimates.

3.64One method of parliamentary engagement which has been discussed periodically for many years and which has support from multiple stakeholders is the creation of a new parliamentary committee on Defence.[44] This model was suggested by the Australians for War Powers Reform, who recommended a sub-committee of Cabinet be empowered to ‘hear full evidence and basically hear independent legal and military advice, so that when it does go to parliament the government have got a good chance of actually having the support of both sides of parliament’.[45] Professor Sampford noted that this approach was adopted in World WarII with the establishment of the Advisory War Council, and could be implemented on a permanent basis where the conflict situations arise.[46] The committee could also be empowered to oversee either parts or the entirety of conflict operations, as suggested by former Prime Minister John Howard in relation to the phase 4 of the Iraq War which he suggested could be referred to the JSCFADT.[47]

3.65Mr Scott MacInnes illustrated how a new Defence committee could engage on Executive decisions in relation to armed conflict or warlike operations, including potential powers of the committee in relation to access to information and sharing intelligence with the broader parliament:

If we had a genuinely expanded decision-making national defence security committee doing this, what I would envisage happening is that the Prime Minister comes back from America and says‘ 'It looks like we might need to go to war.' Before he were to make that decision, he should put it to this expanded national defence committee, and that committee should have access to all of the security information, absolutely everything, it needs to make a well-informed decision. The committee would then advise the Prime Minister or come to a joint decision, depending on its status, as to whether it wishes to proceed with that. If it did wish to proceed with that, then part of that committee’s function could well be to recommend what parts of that advice should go to parliament and what part of that advice is too sensitive.[48]

3.66It was acknowledged that the design of any new Defence related committee could be informed by the PJCIS which has legislative underpinnings and for decades has operated in sensitive environments including with classified information. The PJCIS is appointed under section 28 of the Intelligence Services Act 2001 (IS Act) and has a range of functions as specified in the legislation. The PJCIS built on the previous Parliament Joint Committee for ASIO created in the 1980’s by the Hawke Government. The creation of the PJCIS was prompted by the 1995Commission of Inquiry into the Australian Secret Intelligence Service (ASIS), which found that effective parliamentary scrutiny of ASIS’s operations and activities was being hampered by the need for secrecy to maintain the agency’s operations.[49]

3.67The PJCIS model could provide guiding precedents for a new Defence related Committee in how to ensure the balance of providing oversight and accountability while maintaining appropriate controls on sensitive material. The PJCIS’s composition and functions are set out in the legislation which also establishes limits to the committee’s role and powers.[50] Unlike most parliamentary committees, the PJCIS’s enabling legislation permits the release of classified information to its members in order to ‘fulfil its legislated mandate’, but places restrictions on members and secretariat staff regarding disclosure or publication of such information. Breaches of these restrictions constitute an offence under the IS Act and can be penalised with up to two years’ imprisonment.[51]

3.68Stakeholders identified a range of potential benefits of a dedicated Defence statutory committee across:

• Parliament: Improving parliamentary oversight of Defence-related matters, particularly where classified information currently cannot be accessed by parliamentarians or committees; providing a venue for the Parliament to express well informed support for ADF operations and personnel during times of conflict; encouraging parliamentarians with a particular interest in Defence matters to become ‘subject matter experts’ through participation in the proposed committee; providing a venue for Defence to provide classified briefings to the Parliament (where required and appropriate); increasing informed accountability and scrutiny by the Parliament over Defence-related matters through the ability to interrogate issues which are otherwise difficult due to classification issues; improving cross-party cooperation between parliamentarians in relation to matters involving Defence and particularly during times of armed conflict
• Defence: Improving accountability and transparency of Defence matters, including improving parliamentary oversight and engagement as discussed in the 2018 report Contestability and Consensus (see below) and ongoing monitoring of the implementation of parliamentary committee recommendations[52]; an alternative to public disclosure of highly sensitive information addressing concerns regarding the amount of information on capability acquisition and capital planning in the public domain; allowing for broader policy discussion with parliamentarians and stakeholders; enabling ‘shared ownership’ with the Parliament of contested or controversial decisions, such as high-risk acquisitions or operations where sensitive details cannot be publicly released; promoting long-term stability in strategic direction and capability acquisitions and sustainment
• Defence industry and stakeholders: Providing greater certainty to industry partners that a cross-party approach increases stability in Australian Government policy
• International partners: Developing strategic policy based on cross-party supported findings; providing a forum for international counterparts to consult with parliamentarians via a specialist committee
• Australian public: Enhancing confidence in the Parliament’s ability to oversight Defence policy, acquisitions, and agencies
  69. Defence has raised concerns regarding a dedicated Defence Committee that could receive classified information which were outlined in its response to the JSCFADT’s prior report into parliamentary engagement, discussed below.

Previous committee recommendations

3.70In 2018, the Defence Subcommittee of the JSCFADT inquired into the benefits and risks of a Bipartisan Australian Defence Agreement as the basis of planning for, and funding of, Australian Defence capability. The resulting report, Contestability and Consensus: A bipartisan approach to more effective parliamentary engagement with Defence, discussed how parliamentary engagement could enhance bipartisanship to improve Defence’s engagement with Parliament in addition to improving public accountability and transparency.

3.71A major proposal of the report was the establishment of a new statutory parliamentary Defence committee. The Subcommittee noted the importance of Defence oversight by parliamentary committees, but that this can be limited by the lack of access to sensitive and classified information, which stymies effective and well-informed scrutiny of Defence expenditure and operations.[53]

3.72The Committee pointed to the PJCIS as an example of a highly sensitive parliamentary committee which had been successful in operating in a bipartisan manner to scrutinise Australia’s intelligence agencies. It acknowledged, however, that there were elements of the PJCIS’s legislated scope and operations which limited its impact on national security policy, such as: limited powers and resources, a lack of inquiry self-referral provisions, and limited capacity to review controversial legislation.[54] It also observed that the UK Intelligence and Security Committee had a significantly broader remit than the PJCIS, which has a ‘wider, more intrusive oversight mandate’.[55]

3.73The Committee’s proposed model was designed to:

improve parliamentary engagement with and oversight of the Department of Defence (Defence) and its portfolio agencies and should focus on the development and implementation of Defence strategy.[56]

3.74The proposed committee was based on the PJCIS model of a statutory committee with specific powers to review a range of Defence matters and access to classified information. It also recommended the implementation of self-referral provisions for the new committee, including to inquire into Defence portfolio agencies’ annual reports.[57] Importantly, however, the model recommended in the 2018 inquiry did not include the proposed committee having any powers in relation to the decision to go to war.

3.75The model suggested in Contestability and Consensus was broadly supported by submitters in this inquiry. Some suggested improvements on the model. Mr Scott MacInnes recommended additional features such as:

• ensuring that the proposed committee exists in addition to other mechanisms to improve parliamentary scrutiny and engagement
• a nonpartisan, rather than bipartisan, membership, with a strong diversity of views across party, political and gender divisions[58]
  76. In response to the previous inquiry, the then Australian Government disagreed with the Committee’s recommendation to create a new statutory committee on Defence matters, stating:

There are already substantial Parliamentary oversight measures in place for the Department of Defence. Australia has enjoyed a long period of broad bipartisan agreement on Defence policy, operations and force structure and additional measures to enhance bipartisanship are not necessary at this time. Defence’s funding base has been secured through a long-term funding arrangement announced by the Government.[59]

3.77The Government Response further noted:

It is not clear how the additional step of a Committee being deeply engaged in the operational management issues of the Department of Defence would lead to any greater sense of bipartisanship either in the Parliament or in the broader community above what already exists.[60]

3.78Finally, the response expressed concern that the proposed committee would be an addition to a number of parliamentary committees who examine Defence matters, and that this recommendation may not ‘reduce the administrative burden for Defence to support other committees’.[61]

3.79In response to this Committee’s suggestion of the Contestability and Consensus model being adopted, the Department did not express any particular objection in introducing this type of parliamentary committee, noting that it was a decision for the Government and the Parliament.[62] It did, however, suggest that certain matters should be considered if this model was pursued:

Relevant security factors in considering any proposal to establish a PJCIS-like body would include the critical importance of maintaining timely and flexible decision-making for ADF deployments, and ensuring the ongoing confidentiality of highly classified information. Any such proposal would also need to consider the potential impacts on the ADF’s operational security; the ADF’s relative strategic and tactical advantages over adversaries; and Australia’s international credibility as a security and intelligence partner.[63]

Comparative models in international jurisdictions

3.80Appendix C provides an outline of comparative models in other jurisdictions. Some jurisdictions utilise committees in legislative bodies to oversee and scrutinise activities of their Defence forces or intelligence services. Such examples include:

• the United States Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence, which have strong oversight and scrutiny powers (including access to classified briefings and documents on a wide range of topics) over the intelligence community in the United States

• the Defence Committee of the House of Commons in the United Kingdom Parliament, which has oversight of the expenditure and administration of the Ministry of Defence and its related agencies[64]
• the Belgian Federal Parliament’s Special Parliamentary Committee for Defence Acquisitions and Sales, which operates alongside the Defence Committee, and has access to classified information on material relating to Defence acquisitions and sales projects[65]
  81. It should be noted that all models are unique to the individual country’s culture, history, and legislative body. For example, the United States operates as a co-government system, and Congress has specific rights under their Constitution which can be asserted. This model therefore operates significantly differently in comparison to Westminster systems of government.
  82. There are some international direct comparisons of committees empowered with responsibilities over classified Defence material, and it may reasonably be expected that this may evolve in other jurisdictions in the future. Some international committees have experienced issues in accessing classified information despite having oversight authority of those areas. For example, in November 2022 the UK Defence Select Committee requested access to the UK Special Forces, which was taken up with UK Secretary of State for Defence, who suggested that the Committee did not have oversight powers of the Special Forces.[66] Further, examples from other jurisdictions such as the Belgian Parliament indicate that such a model can work, particularly in the context of Defence acquisitions and project management.[67]

Committee comment

3.83The Committee proposes the establishment of a Joint Statutory Committee on Defence. The current committee system effectively blocks parliamentary engagement with Defence on classified matters aside from those that relate to the operations of the PJCIS. Changing strategic circumstances make enhanced parliamentary literacy and engagement in Defence issues more important than ever. The now Shadow Minister for Defence, Hon Andrew Hastie MP, rightly described parliamentary scrutiny of Defence as “broken” with only “surface level” scrutiny possible in dire need of “fixing” as “without it, our Parliament can’t exercise proper civilian oversight of the military”.[68]

3.84The Committee accepts that certain Defence operational, intelligence and security matters must be classified and require reduced public disclosure and acknowledges there will be pressure to further reduce public disclosure of sensitive capabilities, acquisitions, and sustainment issues. However, limits to public disclosure must be balanced with increased accountability and transparency to and through the Parliament.

3.85A statutory Defence committee, established and empowered by legislation, should have the ability to receive and request classified briefings, subject to sensible limitations. A model was also recommended in the 46th Parliament’s JSCFADT report on parliamentary engagement with Defence. The consistent findings over time suggest that there is a recognition across parties of the importance of these functions and issues.

3.86The Committee is of the view that a statutory committee on Defence matters should be modelled on the PJCIS to provide similar levels of oversight and accountability for Defence as applies to intelligence agencies, including scrutiny of annual reports, strategy and planning for capability development, acquisitions, and contingencies.

3.87If established, such a committee could also contribute significantly to promoting broad support across parties on matters relating to Defence policy, capability acquisition and sustainment, noting that:

• ‘bipartisanship’ should fundamentally be a process of open-minded formal and informal discussion and inquiry that is more likely to provide contestability while producing the largest amount of consensus
• constructive bipartisan contestability and consensus is highly desirable given the long investment cycles and benefits of strategic certainty, which has been demonstrated to great effect in the PJCIS and the increased bipartisanship on national security matters
• a properly constituted Defence Committee would enhance scrutiny and debate, but in a classified and therefore less public and partisan environment and would provide assurance of appropriate and enhanced accountability of Defence to Parliament
• current arrangements make it largely impossible for the Parliament to exercise appropriate supervision of such a significant, consequential, and costly Commonwealth activity
  88. A dedicated Statutory Defence Committee would significantly address the well-documented concerns regarding a lack of transparency regarding Defence activities and expenditure. Audits, reviews, and inquiries in recent years have consistently identified that Defence can too easily hide lack of agency preparation or sub-optimal performance behind classification issues. Parliament has both an obligation and a right to access information necessary to oversight how the Executive expends public funds. Cross-party parliamentary engagement with Defence (via a Government-majority committee with improved powers of scrutiny and access to classified information) could better support strategic policy and objectives in the long term by:
• building greater parliamentary and public consensus regarding principles, strategy, and goals
• improving Defence performance and accountability through enhanced parliamentary scrutiny
  89. The Committee’s proposal outlined in the recommendation below is directly informed by the model provided by the PJCIS. The Government of the day would retain a majority on the committee and holding of the Chair’s position and the proposed approach would not diminish the Executive’s powers and prerogatives. The legislation could provide for membership that is broadly proportional to representation of parties in the Parliament. Learning from the experience of members on the PJCIS, the Committee specifically recommends that members of the new Joint Statutory Committee on Defence should have the ability to have one staff member cleared to at least NV2 level. It is impractical to expect members to assume a greater workload without this support.
  90. The Committee is firmly of the view that a separate Defence Committee is needed and that this cannot and should not be combined with the PJCIS. They are fundamentally different subject matters, and the PJCIS should not be distracted from its core role in oversighting the intelligence agencies and reviewing national security legislation, balancing the perpetual tension between individual liberties and collective security.
  91. Similarly, it would be impractical and unwise to seek to deliver an enhanced Defence Committee via the existing Defence Subcommittee. The proposed Joint Statutory Defence Committee, as with the PJCIS, would require appropriate security precautions around its operations and security clearances for Secretariat staff, which would be more expensive and complicated if applied to a Subcommittee of a larger Committee. Greater security risks, costs and complexities arise, and it would be peculiar and needlessly complicated to try to establish a legislative regime over a Subcommittee of a Committee that is only created by Joint Resolution, as well as set up a peculiar dynamic within the broader Committee.
  92. Day to day, the proposed Joint Statutory Committee would operate like other parliamentary committees with information handling requirements akin to the PJCIS. Provision is also proposed to be made however for the Prime Minister and Minister for Defence to authorise specified members of Parliament (Ministers or senior Opposition Shadow Ministers) to be part of particular meetings, briefings or activities of the Committee (including but not only in relation to armed conflicts). During such activities they would not be considered members of the Committee but would be able to participate subject to the same statutory restrictions regarding the disclosure or publication of classified information as Committee Members.
  93. The creation of a Joint Statutory Defence Committee would mean that the existing Parliamentary Joint Standing Committee on Foreign Affairs Defence and Trade would need to be reconstituted without its Defence responsibilities, for example as the Parliamentary Joint Standing Committee on Foreign Affairs, Aid, Human Rights and Trade. It may be desirable to maintain a large enough membership of the successor Committee to allow enough members to seek appointment to both committees, maintaining a level of coordination and broader awareness of the non-Defence dimensions of international policy.
  94. It is intended that the existing responsibilities of the Senate Foreign Affairs, Defence and Trade Committee would continue without change. In particular, legislation relating to the Defence portfolio including Veterans’ Affairs would continue to be reviewed by the Senate Committee rather than the new Joint Committee. An exception to this default approach may be if a piece of legislation raised issues which warranted highly classified briefings in which case the Joint Statutory Defence Committee could provide an alternative, but that is not seen as a likely common occurrence.
  95. It is acknowledged that it will take some time for the Government to establish the new Committee given the need for legislation, and to provide for appropriately secure facilities for Committee staff and meetings. It is timely that a new Parliamentary Secure Compartmentalised Information Facility is currently being constructed as the new Joint Statutory Committee on Defence could share use of this facility with the PJCIS.
  96. The Committee recognises that the proposal for a new Joint Statutory Committee on Defence may create concern within the Defence establishment given previous debates, proposals, and security considerations. The Committee encourages the Government to exercise leadership as if carefully designed and with sufficient safeguards, the proposed committee could be a strong enhancement to national security while providing for increased scrutiny. In 1988 Prime Minister Bob Hawke created the Parliamentary Joint Committee on ASIO after rejecting the advice of the Hope Royal Commissions not to enhance parliamentary oversight of the intelligence agencies. History has proved he was right to do so, and the Government is encouraged to emulate Prime Minister Hawke’s example and act to strengthen national security and enhance the accountability of defence to the Parliament.

3.97The Committee recommends the Government introduce legislation to establish a Joint Statutory Committee on Defence to supersede and enhance the Defence related functions currently undertaken by the Joint Standing Committee of Foreign Affairs, Defence and Trade. This committee should have its powers set out in legislation, including oversight and accountability functions in relation to the Australian Defence Force, the Department of Defence and specified portfolio agencies including:

• scrutiny of Defence portfolio annual reports
• consideration of white papers, strategy, planning and contingencies
• scrutiny of Defence capability development, acquisitions, and sustainment
• consideration of matters relating to Defence personnel and veterans’ affairs
• inquiry into matters referred by the Minister for Defence or either House of Parliament
• general parliamentary oversight of war or warlike operations, including ongoing conflicts and involvement in significant non-conflict-related operations domestically and internationally

The proposed committee should be explicitly permitted to request and receive classified information and general intelligence briefings while also being subject to clear legislative constraints to its mandate, including restrictions on access to:

• individual domestic intelligence reports
• intelligence sourced from foreign intelligence bodies where such provision would breach international agreements
• detail regarding operational matters or information regarding highly sensitive capabilities or protected identities, except where specifically authorised by the Minister for Defence

Statutory restrictions should be placed on members, their staff (one of whom should be able to obtain a security clearance at minimum NV2 level) and secretariat staff regarding the disclosure or publication of classified information with appropriate penalties including imprisonment for breaches.

Notwithstanding the proposed committee’s powers and ability to receive and request classified briefings, the legislation should also provide that the Minister for Defence should have an overarching power to veto the provision of any classified information to the committee whenever the Minister considers that the provision of the classified information in question would compromise national security.

The committee’s membership should be appointed by the Prime Minister, and, in consultation with the Leader of the Opposition, constituted by:

• Six Government members and five non-Government members, with a minimum of:

• One Government Member of the House and one Government Senator
• One Opposition Member of the House and one Opposition Senator

• One Government Member as committee chair

The Prime Minister and Minister for Defence should be provided with the ability to authorise specified members of Parliament (Ministers or senior Opposition Shadow Ministers) to be part of particular meetings, briefings or activities of the committee, during which they would not be considered members of the committee but would be able to participate subject to the same statutory restrictions regarding the disclosure or publication of classified information as committee members.

3.98The Committee recommends that, subject to Recommendation 6, the Cabinet Handbook codify an expectation that the Prime Minister or Minister for Defence will facilitate appropriate briefings of the Defence Committee regarding the conduct of significant military operations, subject to ongoing national security considerations as determined by the Prime Minister and Minister for Defence. This would include necessary authorisations to enable Ministers or senior Opposition Shadow Ministers to participate in such meetings.

3.99In conclusion, the Committee is strongly of the view that Australia’s system of parliamentary democracy is likely to be kept healthy, effective, and well-adapted to face emerging challenges when there is both respect for its well-established institutions, regulations, and practices, and a preparedness to consider in a measured way how those elements may sensibly evolve and improve as they are tested and as circumstances change.

3.100There is a balance to be struck between the value of stability and the value of calibration through proper process, guided by evidence, expertise, and history.The Committee believes this inquiry and its recommendations observe that balance by advancing calibrations that make substantial change but do so by extending tried and tested forms of parliamentary process like tabling expectations, debate opportunities, and committee oversight.

3.101In the Committee’s view, this inquiry into the question of Australia’s approach to decision making with respect to war or warlike operations is timely and even somewhat belated, and the Committee acknowledges those individuals and civil society groups that have made that case in recent years.

3.102The evidence to the Committee sustains a conclusion that the transparency and parliamentary consideration of such decision making has become less clear and less substantial in recent decades.The Committee is convinced that greater transparency and parliamentary consideration of such decisions can and should occur, and commends its recommendations to that effect, on this most serious of subjects, to the Government.

Mr Julian Hill MPChair

Defence Subcommittee30 March 2023

Hon Shayne Neumann MP

Chair

Joint Standing Committee on Foreign Affairs, Defence and Trade30 March 2023

Footnotes

[1]Dr Sue Wareham, Australians for War Powers Reform, Committee Hansard, 9 December 2022, 3.

[2]An example of such a practice was in September 1939, where Prime Minister Robert Menzies recalled the Parliament three days after the announcement that Australia would be joining Britain in World War II, where he then provided a ministerial statement to the House of Representatives regarding the war, and parliamentary debate followed: Department of Defence, submission 110, 2.

[3]For example, Prime Minister Robert Menzies established a ‘bipartisan Advisory War Council to ensure all major political parties had the opportunity to provide input into decisions on Australia’s war effort’ during World War II. However, its functions were advisory only and did not bind the executive to any particular decision nor did it have any executive powers: Department of Defence, submission 110, p. 2.

[4]The Hon Mr Archie Cameron MP, Foreign Affairs and Defence – Ministerial Statement, House of Representatives, Debates, 5May 1955, 523.

[5]Australia for War Powers Reform, submission 12, 1.

[6]Australians for War Powers Reform, ‘Huge majority of Australians support war powers reform’, Media Release, 1 December 2020, available at: https://warpowersreform.org.au/wp-content/uploads/2020/12/AWPR-Release-26-Nov.pdf (accessed 8 February 2023).

[7]Ms Donna Mulhearn, submission 89, 2.

[8]Mr Scott MacInnes, submission 23, 6.

[9]Professor George Williams AO, Private capacity, Committee Hansard, 9 December 2022, 19.

[10]Mr Scott MacInnes, Private capacity, Committee Hansard, 9 December 2022, 27.

[11]Mr Stephen Gentle, submission 17, 2; Independent and Peaceful Australia Network, Submission 40, 1.

[12]Mr Stephen Gentle, submission 17, 3.

[13]Mr Scott MacInnes, submission 23, 5.

[14]Mr Allan Behm, Director, International and Security Affairs Program, Australia Institute, Committee Hansard, 9December 2022, 10.

[15]Associate Professor Cameron Moore, School of Law, University of New England, Committee Hansard, 9December 2022, 14.

[16]Professor George Williams, Private capacity, Committee Hansard, 9 December 2022, 20.

[17]Department of Defence, submission 110, 2.

[18]Mr Justin Bassi, Ms Bec Shrimpton and Dr Alex Bristow, submission 86, 2.

[19]Department of Defence, submission 110, 1.

[20]Professor Clinton Fernandes, Private capacity, Proof Committee Hansard, 9 December 2022, 25.

[21]Deirdre McKeown and Roy Jordan, Parliamentary involvement in declaring war and deploying forces overseas, Parliamentary Library, Background Note, 22 March 2010 (2009-10), 16-17.

[22]Honorary Professor Ernst Willheim, submission 6, 16 and 25; Mr Justin Tutty, submission 49, 3.

[23]The Australia Institute, submission 9, 5.

[24]Mr Richard Jones, Submission 27, 1; Australians for War Powers Reform, Submission 12, 5-6; Mr Scott MacInnes, Submission 23.1, 4; Fr Claude Mostowik msc, Submission 57, 1-2.

[25]Mr John Howard MP, Prime Minister, House of Representatives Hansard, Thursday 20 March 2003, pp.13085 and 13167.

[26]Mr Tony Abbott MP, Prime Minister, House of Representatives Hansard, Monday 1 September 2014, p.9147.

[27]Ms Julia Gillard MP, Prime Minister, House of Representatives Hansard, Tuesday 19 October 2010, p.692.

[28]Ms Julia Gillard MP, Prime Minister, House of Representatives Hansard, Tuesday 19 October 2010, p.692.

[29]Mr Graeme Dobell, Submission x, 9-10.

[30]Professor Ben Saul, Private capacity, Committee Hansard, 9 December 2022, 12.

[31]Professor Ben Saul, Private capacity, Committee Hansard, 9 December 2022, 18.

[32]Professor Ben Saul, submission 53, 2.

[33]Professor Ben Saul, submission 53, 2.

[34]Professor Ben Saul, Private capacity, Committee Hansard, 9 December 2022, 13.

[35]Ms Kathryn Kelly, submission 68, 1.

[36]Name withheld, submission 74, 2.

[37]Medical Association for Prevention of War (Australia), submission 77, 4.

[38]The Australia Institute, submission 9, 5.

[39]Professor Ben Saul, submission 53, 2.

[40]Mr Justin Tutty, submission 49, 2.

[41]Cited in Mr Graeme Dobell, submission 92, 10.

[42]Mr Graeme Dobell, submission 92, 10.

[43]Mr Graeme Dobell, submission 92, 10-11.

[44]Mr Scott MacInnes, Private capacity, Committee Hansard, 9 December 2022, 24.

[45]Professor Charles Sampford, Australians for War Powers Reform, Committee Hansard, 9 December 2022, 4.

[46]Professor Charles Sampford, Accountability Round Table, Committee Hansard, 9 December 2022, 11.

[47]Mr Graeme Dobell, submission 92, 9.

[48]Mr Scott MacInnes, Private capacity, Committee Hansard, 9 December 2022, 28.

[49]Australian Parliament, Joint Standing Committee on Foreign Affairs, Defence and Trade, Contestability and Consensus: A bipartisan approach to more effective parliamentary engagement with Defence (November2018), 104-105.

[50]Intelligence Services Act 2001, ss 28-29.

[51]Australian Parliament, Joint Standing Committee on Foreign Affairs, Defence and Trade, Contestability and Consensus: A bipartisan approach to more effective parliamentary engagement with Defence (November2018), 106.

[52]In April 2021, the Australian National Audit Office (ANAO) reported that only 10 out of 18, or 56 percent of agreed parliamentary committee recommendations had been fully or largely implemented by Defence. While Defence agreed to all three ANAO recommendations to improve their implementation rate, further oversight mechanisms could be introduced to ensure timely implementation of recommendations: ANAO, Auditor-General Report No. 34 of 2020-21: Implementation of ANAO and Parliamentary Committee Recommendations – Department of Defence (April 2021), available at: https://www.anao.gov.au/work/performance-audit/implementation-anao-and-parliamentary-committee-recommendations-department-defence (accessed 1 February 2023)

[53]Australian Parliament, Joint Standing Committee on Foreign Affairs, Defence and Trade, Contestability and Consensus: A bipartisan approach to more effective parliamentary engagement with Defence (November2018), 100, 103.

[54]Australian Parliament, Joint Standing Committee on Foreign Affairs, Defence and Trade, Contestability and Consensus: A bipartisan approach to more effective parliamentary engagement with Defence (November2018), 106-107.

[55]Professor Russell Trood and Mr Anthony Bergin, ‘Creative tension: Parliament and national security’, Australian Strategic Policy Institute, cited in Australian Parliament, Joint Standing Committee on Foreign Affairs, Defence and Trade, Contestability and Consensus: A bipartisan approach to more effective parliamentary engagement with Defence (November2018), 107.

[56]Australian Parliament, Joint Standing Committee on Foreign Affairs, Defence and Trade, Contestability and Consensus: A bipartisan approach to more effective parliamentary engagement with Defence (November2018), 114 (Recommendation 2).

[57]Australian Parliament, Joint Standing Committee on Foreign Affairs, Defence and Trade, Contestability and Consensus: A bipartisan approach to more effective parliamentary engagement with Defence (November2018), 115 (Recommendation 2).

[58]Mr Scott MacInnes, Private capacity, Committee Hansard, 9December 2022, 27.

[59]Australian Government, Australian Government response to the Joint Standing Committee on Foreign Affairs, Defence and Trade report: Contestability and Consensus: A bipartisan approach to more effective parliamentary engagement with Defence, March 2019, available at: https://www.aph.gov.au/DocumentStore.ashx?id=239baab8-865b-45d7-a96d-8a8dae36c4e8

[60]Australian Government, Australian Government response to the Joint Standing Committee on Foreign Affairs, Defence and Trade report: Contestability and Consensus: A bipartisan approach to more effective parliamentary engagement with Defence, March 2019, available at: https://www.aph.gov.au/DocumentStore.ashx?id=239baab8-865b-45d7-a96d-8a8dae36c4e8

[61]Australian Government, Australian Government response to the Joint Standing Committee on Foreign Affairs, Defence and Trade report: Contestability and Consensus: A bipartisan approach to more effective parliamentary engagement with Defence, March 2019, available at: https://www.aph.gov.au/DocumentStore.ashx?id=239baab8-865b-45d7-a96d-8a8dae36c4e8

[62]Department of Defence, submission 110.2, 2.

[63]Department of Defence, submission 110.2, 2.

[64]UK Parliament, ‘Defence Committee’, (no date) https://committees.parliament.uk/committee/24/defence-committee, accessed 3 March 2023.

[65]Yf Reykers, ‘Strengthening parliamentary oversight of defence procurement: lessons from Belgium’, European Security, 30:4, 2021, 505-525.

[66]Iain Overton, ‘UK’s Defence Committee refused access to UK Special Forces in heated debate with Defence Minister’, Action on Armed Violence, 3November 2022, https://aoav.org.uk/2022/uks-defence-committee-refused-oversight-of-uk-special-forces-in-heated-debate-with-defence-minister/, accessed 17 January 2023.

[67]Yf Reykers, ‘Strengthening parliamentary oversight of defence procurement: lessons from Belgium’, European Security, 30:4, 2021, 505-525.

[68]Hon Andrew Hastie MP, Opinion: Andrew Hastie MP/ex-SAS – on Brereton Inquiry, 24 November 2020, www.contactairlandandsea.com/2020/11/24/opinion-andrew-hastie-mp-ex-sas-on-brereton-inquiry/ (accessed 28 March 2023)