Government proposals on war powers strike the right balance

Last week, the government reaffirmed that the executive decides when Australia goes to war. The government also outlined plans to strengthen oversight mechanisms, including through a new joint statutory committee on defence (JSCD) and a requirement for government to support parliamentary debate by providing timely updates after the dispatch of the Australian Defence Force.

Importantly, parliament will not have a veto over the deployment of the ADF to a war or warlike situation. Any decision to deploy the ADF into an armed conflict remains the responsibility of the National Security Committee of cabinet, led by the prime minister. The government will codify these practices in a statement to be posted on the Department of the Prime Minister and Cabinet website. As outlined by Deputy Prime Minister and Defence Minister Richard Marles, ‘The Government’s response rightly affirms that this remains a decision for the Executive, but that it is important that Parliament has effective mechanisms to examine and debate such decisions.’

With a war raging in Europe and tensions rising in the Indo-Pacific, the government’s provision of certainty on the executive’s powers and strengthening of oversight is timely. It is more important than ever to explain to the Australian people why the ADF is necessary and how it is working to protect the nation’s core interests and values.

The government’s response concluded the inquiry into international armed conflict decision-making, which was referred to the Joint Standing Committee on Foreign Affairs, Defence and Trade (JSCFADT) by Marles in September last year. The government broadly agreed with the recommendations of the committee’s main report published in March by Labor and Coalition members.

Changes in technology and to strategic circumstances mean periodic examinations of decision-making powers, in addition to holistic evaluations such as the defence strategic review and the reviews every five to seven years of the intelligence community, are important whether they confirm the status quo or result in a dramatic overhaul.

In this case, the inquiry confirmed the ongoing relevance of the war powers process. The committee cited our ASPI submission, in which we expressed ‘significant concerns’ about parliamentary authority being required prior to military deployments due to the potential for delayed response times, inappropriate signalling of Australia’s intentions to adversaries and increased operational security risks to the ADF. The committee’s report also drew on ASPI senior fellow Graeme Dobell’s recommendations to codify conventions for the government to update parliament about the reasons for, and progress of, military operations.

The government’s proposals strike the right balance between democratic accountability and the strategic realities confronting Australia. These realities were laid out starkly in the 2023 defence strategic review, which reiterated that adversaries may attack or coerce Australia without warning, including through channels other than invasion. As we noted in our submission, deterrence rests on Australia’s allies and adversaries believing that the government can and will respond promptly and resolutely to threats, which would be in doubt if the executive’s prerogative was diluted.

This outcome won’t satisfy the long-term campaigners for a parliamentary veto over ADF deployments. The Greens will be upset, but not surprised, that the government rejected the additional proposals in their dissenting report, which had sought amendments to the Defence Act to limit executive war powers and force the disclosure of government legal advice.

However, the Greens aside, the government’s approach has bipartisan support. Shadow Defence Minister Andrew Hastie has welcomed plans for a new defence committee and requested early consultation on the draft legislation. Hastie and the JSCFADT favour a body with the same capacity to undertake classified hearings and receive sensitive intelligence and other national security advice as the Parliamentary Joint Committee on Intelligence and Security (PJCIS). The government has cautioned that further work is necessary to determine the scope and powers of the JSCD, particularly to deconflict with existing committees like the PJCIS.

Getting the shape of the new defence committee right will be difficult.

It’s ironic that the PJCIS is being held up as an example when its future shape is unclear. Government amendments included in the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill, passed by the parliament earlier this month, expand the committee’s membership, potentially allowing for inclusion of crossbenchers in a committee that has been composed solely of government and opposition members. This move prompted the first-ever dissenting report from a PJCIS inquiry. The government needs to proceed with care if bipartisanship and the Goldilocks point between democratic accountability and national security are to be maintained.

In our view, the PJCIS is seen as an exemplar of parliamentary oversight because of its current structure, its substantive work in private hearings, and the trust between its membership and the national security and intelligence community. Unnecessary disruption of this mutual trust could turn appropriate oversight into political point scoring, which risks committees duplicating the adversarial Senate estimates process. The same principles should be applied to the design of the JSCD.

Beyond membership, it’s also necessary to consider what the shift towards national defence outlined in the 2023 defence strategic review means for the JSCD’s bureaucratic scope. Just as national defence is not solely the purview of the defence organisation, the JSCD may need to draw on expertise from defence industry and a range of agencies involved in national preparedness and resilience, including the Department of Foreign Affairs and Trade and the Department of Home Affairs.

Managing the burden on government officials is also essential. Canberra is already operating close to full stretch. During times of heightened organisational effort—as we saw after the 11 September 2001 terror attacks and the rise of Islamic State, and will see again—the tempo of parliamentary engagements can interfere with operations. An unclear division between the PJCIS, the JSCD and the rump of the JSCFADT could exacerbate the problem, increasing demands for briefings from those working at the intersection of national security and national defence.

The difficulty of setting up a JSCD with a broad remit and secrecy provisions must not obscure the clear and urgent need for this mechanism. In the past decade, the confluence of national security threats from terrorism to foreign interference has highlighted the benefits of the PJCIS maintaining its focus on the national security and intelligence community and relevant national security legislation, which collectively keep Australians safe. However, there’s no mechanism equivalent to the PJCIS that allows for full and frank dialogue between the parliament and the broad community of institutions engaged in national defence.

Fundamentally, an appropriate degree of secrecy such as these committees provide is necessary to protect our democracy and ensure accountability. In the cyber- and AI-enabled world in which we now live, seemingly innocuous snippets of publicly disclosed information, from budget details to workforce headcounts, could be pieced together for military targeting and other strategic effects (the so-called mosaic effect). Secrecy also underpins the operational security of the ADF and intelligence agencies, which includes the ability to deceive, or at least not signpost our intentions to, those seeking to do us harm. And we don’t have time to sit on our hands: implementing AUKUS and the defence strategic review will be painstaking and expensive, and our strategic competitors will work tirelessly to glean intelligence and spread disinformation.

Public trust demands that our politicians have the information required to scrutinise government and ensure value for money. A new joint statutory committee can help achieve that, but it is only one part of the puzzle. National defence requires a whole-of-nation appreciation of the threats we face and the resilience we must build to deter aggressors and safeguard our values, sovereignty and democratic institutions. That cannot be achieved solely behind closed doors.

To build the social licence for national defence, the government must fearlessly expose coercive, aggressive and threatening conduct no matter the source, whether it’s Beijing, Moscow or others. The government must explain to the public the nature of the threats, what it is doing to meet those threats, and who is really at fault when Beijing or a similar regime tests our national resolve again by hitting us with trade sanctions and other tools of coercion.

The proposals put forward by the government for clarifying war powers complement the move towards national defence fit for our time. Throughout the wars of choice of recent decades, life in Australia went on as normal as our women and men in uniform fought for our interests overseas. But as we grapple with the increasing possibility of war in our region and the certainty of increasing coercion against our nation, we must recall what former generations knew: deterring and, if necessary, winning wars is a test of national, not just military, will, preparedness and strength.

Expecting parliament to spend more time debating decisions to deploy the ADF into armed conflict, without stymying the executive prerogative to do so, is a step in the right direction.