- Background and conduct of the inquiry
- The power to declare war and send military personnel into conflict situations is arguably the most significant and serious institutional power, regardless of the type of governance system involved. In the Australian context, the power to go to war or conduct warlike operations rests with the Executive Government. The weight of the burden of this responsibility is evident in previous leaders’ public statements when going to war, such as former Prime Minister Robert Menzies upon announcing the outbreak of World War II in 1939:
Fellow Australians, it is my melancholy duty to inform you officially that, in consequence of the persistence of Germany in her invasion of Poland, Great Britain has declared war upon her, and that, as a result, Australia is also at war. No harder task can fall to the lot of a democratic leader than to make such an announcement.
1.2Australia has been involved in a number of wars over its comparatively short history, many of which have been tarnished by controversy. Much of the public and political debate in such instances has been in relation to two key factors: the power and method in which the Australian Government can go to war or conduct warlike operations, and the nature and extent of parliamentary engagement involved in such decisions and the subsequent conduct of a conflict.
1.3This inquiry delved into a range of issues raised in this debate and has grappled with the very serious questions relating to decision-making regarding Australia’s involvement in international armed conflict and the substance and timing of parliamentary oversight.
‘War’ in the contemporary Australian context
1.4The concepts of ‘war’ and ‘armed conflict’ have changed significantly since the early twentieth century. In undertaking this inquiry, the Committee has considered evidence regarding the more expansive nature of what ‘armed conflict’ may look like in future, and how best to accommodate these new understandings into the Australian framework.
1.5Section 4 of the Defence Act 1903 (Defence Act) provides the following definitions:
“War” --Means any invasion or apprehended invasion of, or attack or apprehended attack on, Australia by an enemy or armed force.
…
"Time of War" --Means any time during which a state of war actually exists and includes the time between the issue of a proclamation of the existence of war or of danger thereof and the issue of a proclamation declaring that the war or danger thereof, declared in the prior proclamation, no longer exists.
1.6The concept of ‘war’ was recognised by most stakeholders to be far broader than was originally envisaged during the drafting of the Defence Act or other legislation. It was observed by submitters and witnesses that conflict is no longer isolated to situations involving open warfare as traditionally understood, but also in other arenas such as cyber and space. The Department of Defence (Defence) supported this view, stating that:
The nature of warfare has … shifted, with the growth of grey-zone activities and offensive operations in the space and cyber domains challenging traditional concepts of ‘conflict’.
1.7Cyber warfare was noted as being particularly unsettled in terms of the other types of conflict due to the uncertainty around international regulation around the use of force online.
1.8Further, what it means to be ‘at war’ or in a ‘time of war’ is similarly opaque in comparison to historical understandings of the concept. ‘International conflict’ today now represents a wide range of adversarial activity and operations, including espionage, foreign interference, and other forms of indirect hostilities. Activity exists on a spectrum ranging from competition, confrontation to conflict and old binary notions of being ‘at war’ (i.e., major kinetic conflict) vs. ‘at peace (i.e., the absence of major kinetic conflict) no longer reflect our strategic circumstances or the reality of the doctrine of authoritarian states and potential adversaries.
1.9It is nevertheless the case that in essence ‘war’ involves the prospect, occurrence, and practice of violence from one nation to another, or to foreign non-state actors, and it is the grave consequences of war that properly place such decisions in a category that deserves specific consequences.
1.10In conducting its inquiry, the Committee has thus taken these factors into consideration, and is conscious of the importance of making recommendations in the context of current and emerging forms of conflict.
History of Australian decisions regarding international armed conflict
1.11Australia has committed its armed forces to war or warlike operations multiple times in its relatively short history since Federation. According to statistics provided by the Parliamentary Library, the Australian Government has committed forces to ten separate formal international conflicts:
- World War I (1914-1918)
- World War II (1939-1945)
- Malayan Emergency (1950-1960)
- Korean War (1950-1953)
- Confrontation (Indonesia; 1963-1966)
- Vietnam War (1962-1973)
- Gulf War (1990-1991)
- Afghanistan (2001-2021)
- Iraq (2003-2010) and
- Iraq 2014/Syria 2015
- In addition to these, the Australian Defence Force (ADF) and related agencies have contributed forces and other resources to international conflict areas at various points in time, such as peacekeeping and training units.
- Appendix C, provided by the Parliamentary Library, outlines the ten key instances of Australian decisions in relation to international armed conflict, and how the Parliament was engaged in these decisions by the Executive Government of the time.
Past legislative reform attempts
1.14Prior efforts to amend legislation or change processes regarding parliamentary involvement in deployment or warlike operations decisions include:
- The Defence Amendment Bill 1985, introduced by Senator Colin Mason, Australian Democrats, in April 1985, which proposed both Houses of Parliament being required to vote on any deployment of military personnel overseas except in specific circumstances. This bill was subsequently reintroduced in 1988 by Senator Paul McLean, Australian Democrats
- The Defence Amendment (Parliamentary approval for Australian involvement in overseas conflicts) Bill 2003, introduced jointly by Senator Andrew Bartlett and Senator Natasha Stott Despoja, Australian Democrats, in 2003
- The Defence Amendment (Parliamentary Approval of Overseas Service) Bill2008 (the 2008 Bill), presented in the Senate by Senator Andrew Bartlett in February 2008 and then later reintroduced by Senator Scott Ludlam, Australian Greens, in September 2008
- The Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020 (the 2020 Bill), which was introduced as a private senator’s bill by SenatorJordonSteele-John
- The four bills do not substantially differ in their main proposals or provisions over the different iterations. Most of these bills were debated in the Senate but adjourned without a vote or successful implementation. As of 20 February 2023, the 2020 bill remains before the Senate after having been restored to the Notice Paper after lapsing at the end of the 46th Parliament.
Recent parliamentary inquiries
1.16Since 2010, there have been three parliamentary reviews which have either directly or indirectly examined issues regarding parliamentary engagement in relation to war or warlike operations:
- The 2010 inquiry into the 2008 Bill by the Senate Foreign Affairs, Defence and Trade Legislation Committee (Senate FADT Committee)
- The 2018 inquiry into the benefits and risks of a Bipartisan Australian Defence Agreement, as a basis of planning for, and funding of, Australian Defence capability, conducted by the Joint Standing Committee on Foreign Affairs, Defence and Trade (JSCFADT)
- The inquiry into the 2020 Bill by the Senate FADT Committee
Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2] inquiry
1.17This inquiry was prompted by the introduction of the 2008 Bill in September 2008, which was subsequently referred to the Senate FADT Committee in August 2009. The 2008 Bill’s stated purpose was to ‘ensure that, as far as is constitutionally and practically possible, Australian Defence Force (ADF) personnel are not sent overseas to engage in warlike actions without the approval of both Houses of Parliament’. It proposed that ADF personnel must not serve in locations beyond the territorial limits of Australia unless first authorised by resolution, agreed to by both Houses of Parliament. The 2008 Bill also made provisions to enable the Houses to meet after the Governor-General declares an emergency requiring ADF service.
1.18While the Committee ultimately did not support the passage of the 2008 Bill due to a range of concerns, it commented:
The committee is not in any way against the involvement of both Houses of Parliament in open and public debates about the deployment of Australian service personnel to warlike operations or potential hostilities. It agrees with the views of most submitters that the Australian people, through their elected representatives, have a right to be informed and heard on these important matters.
Inquiry into a Bipartisan Australian Defence Agreement and Australian Defence capability
1.19In November 2018, the Joint Standing Committee on Foreign Affairs, Defence and Trade tabled the report Contestability and Consensus: A bipartisan approach to more effective parliamentary engagement with Defence. This report contained the findings of the inquiry into the benefits and risks of a Bipartisan Australian Defence Agreement as the basis of planning for, and funding of, Australian Defence capability. One of the key areas of the inquiry’s focus was how parliamentary engagement could enhance bipartisanship, which would benefit Defence, the Government, and the Australian people at large.
1.20The findings of this inquiry, while not directly relevant to the decision to go to war or conduct warlike operations, touched on several relevant issues that were reiterated in the course of this inquiry. In particular, the Committee made observations regarding the nature of how Defence as an entity engages with the Parliament, and how best to facilitate increased and more effective engagement. The findings and recommendations relevant to this inquiry will be discussed further in Chapter3.
Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020 inquiry
1.21The 2020 Bill was referred to the Senate FADT Committee for scrutiny by the Senate Selection of Bills Committee. In reviewing the 2020 Bill, The Senate FADT Committee observed that the 2020 Bill was ‘a revised version’ of the 2008 Bill, with key differences including provisions relating to emergency situations and what information should be provided to the public and the Parliament.
1.22The Senate FADT Committee found that submitters to the 2020 Bill inquiry were generally supportive of the broad intent of the proposals, but that detailed examination of the provisions was limited in evidence. The Senate FADT Committee again did not support that the proposed reforms pass, citing concerns regarding a lack of evidence of how the changes would work in practice, intelligences, and potentially impacting Defence’s capability to flexibly respond to fast-developing situations.
1.23Similarly, to 2010, the Senate FADT Committee expressed that its intention was not to stymie parliamentary involvement in decisions relating to armed conflict or warlike operations:
The committee observes that ultimately the government is accountable to parliament and the Australian people. There are checks and balances on executive power through the normal parliamentary process and there is nothing preventing parliamentary discussion of an overseas deployment. As in 2010, the committee is not against the involvement of both Houses of Parliament in open and public debates about the deployment of Australian service personnel to warlike operations or potential hostilities. Indeed, there are many parliamentary processes that allow for debate and scrutiny.
Conduct of the inquiry
1.24Under its resolution of appointment, the Joint Standing Committee on Foreign Affairs, Defence and Trade (the Committee) is appointed to inquire into and report on such matters relating to foreign affairs, defence and trade as may be referred to it by either House of the Parliament or a Minister.
1.25The inquiry was referred to the Committee by the Deputy Prime Minister and Minister for Defence, the Hon Richard Marles MP, on 28 September 2022. The Committee resolved to task the Defence Subcommittee to undertake the inquiry in line with the terms of reference as provided by the Minister (see Terms of Reference, p. xi). The Committee publicly announced its inquiry by media release on 30 September 2022 and requested submissions by 18 November 2022.
1.26Over 113 submissions were received by the Committee. One public hearing was held in relation to this inquiry on 9 December 2022.
1.27This report, the Hansard transcripts of the public hearing, and all submissions to the inquiry are available on the Committee’s website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Foreign_Affairs_Defence_and_Trade/Armedconflict/.
1.28The Committee thanks the organisations and individuals who provided submissions to the inquiry and appeared at the public hearing. The Committee particularly recognises the submitters and witnesses who appeared before the Committee who served as Defence personnel in military conflict internationally and values their unique perspectives on the issues raised.
1.29The Committee also recognises the extensive research assistance conducted by the Parliamentary Library during the inquiry, and thanks the researchers involved for their work.