List of recommendations

2.97The 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.

2.106The Committee recommends that the Cabinet Handbook be amended to clarify that:

Executive power in relation to armed conflict and the deployment of military force flows from section 61 of the Constitution

In the modern era, Executive power is in practice exercised collectively via the National Security Committee of the Cabinet, whose decisions can be given effect via section 8 of the Defence Act or by advice to the Governor-General as Commander in Chief under section 68 of the Constitution

In the event of war or warlike operations:

oIt is preferable that section 68 of the Constitution be utilised, particularly in relation to conflicts that are not supported by resolution by the United Nations Security Council, or an invitation of a sovereign nation given that complex matters of legality in public international law may arise in respect of an overseas commitment of that nature

oA written Statement be published and tabled in the Parliament setting out the objectives of such major military operations, the orders made and its legal basis

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.

3.60The 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

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:

oOne Government Member of the House and one Government Senator

oOne 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.