by Brian Toohey
Crucially, the US requires almost all countries that buy its weapons systems, including Australia, to send sensitive components back to the US for repairs, maintenance and replacements without the owners being allowed access to critical information, including source codes, needed to keep these systems operating. As far back as 2001, the conclusion of the Parliamentary Library research paper quoted above was that Australia could not conduct operations requiring the use of its advanced weapons platforms for any length of time without US support. Since then, we have become much more dependent on US support for far more complex systems. This means we could be defenceless if attacked, unless the US allows the Defence Force independent access to key operational components of fighter planes, missiles, submarines, surveillance systems and so on. If Australia became involved in a conflict with Indonesia against the wishes of the US, the Americans could refuse to keep the weapons systems operating. This may seem unlikely, but is not implausible.
Israel is the only country to have successfully demanded that it be able to operate key systems independently of the US. Like Australia, Israel has bought the US F-35 fighter plane, whose cloud-based computer ‘brain’—the autonomic logistics information system (ALIS)—constantly sends and receives information to and from its manufacturer, Lockheed Martin. The American defence writer Joseph Trevithick reported in 2017, ‘Israel has secured unique and unprecedented rights to tinker with its F-35s, operate its ALIS systems outside the centralised network—and possibly operate the F-35s independent of the ALIS totally. It is even developing its own software to sit on top of the existing applications.’2 Trevithick said this approach could help address the problem that ALIS ‘could also offer an incredibly attractive Achilles heel for enemy hackers to sink their teeth into’.3
As well as the F-35, Australia depends on continuing access to US systems during a major conflict to operate its Super Hornet fighters, its Growler cyber-warfare planes, its Poseidon maritime-patrol aircraft, its Wedgetail airborne early warning and control aircraft, and its big Triton drones.
Although the ability to operate our major weapons systems independently is crucial to defending Australia, our leaders prefer to ignore this fundamental flaw and become more tightly integrated with US forces. But integration can also undercut Australian sovereignty by reducing Australia’s scope for independent military action in other ways.
Shortly after returning from his six-year posting as Australia’s ambassador to Washington in 2016, Kim Beazley gave a speech in which he said Americans wanted to move beyond ‘interoperability’ of the two countries’ military forces to ‘integration’.4 He explained that integration meant that what the US would ‘actually want of our platforms [ships, planes, etc.] is the performance of tasks that they don’t have the resources to do’.5 He gave the example of how the US Marine Corps in the Pacific wanted to plug a capability gap by using the Australian Navy’s new ships equipped with big helicopters for landing troops.6 Integrating these ships into the US forces could mean that the Australian Navy wouldn’t be able to deploy them at short notice to meet Australia’s own needs in critical circumstances.
In his speech Beazley welcomed how Australia was much more important to the US in 2016 than when he was defence minister in the Hawke Government in the 1980s. He said that the US didn’t really care what our government did as long as the Americans could use the ‘joint facilities’ (the intelligence-gathering bases in Central Australia and the communication station at North West Cape in Western Australia) and we contributed to surveillance operations against the Russians’ Vladivostok (Pacific) Fleet. He said, ‘We would not have been a nuclear target but for those joint facilities. The Americans recognised that … [so] they put us on a very long leash provided we were prepared to support the facilities.’7
Others might see nothing to celebrate in being put on a leash, long or short. But Beazley relished the short leash. He said, ‘From being a strategical irrelevancy during the Cold War, we became the southern tier of the global political system which is the East Asian economy. We are actually critical.’ In effect, this means Australia has a critical role in the US efforts to increase economic and military pressure on China, and if that fails, in winning the ensuing war against 1.4 billion people.
Tom Nichols, a US professor of national security affairs, put the American alliance in perspective when he wrote: ‘In 2014, following the Russian invasion of Crimea, The Washington Post published the results of a poll … The people who thought Ukraine was located in Latin America or Australia were most enthusiastic about using force there.’8 American enthusiasts for bombing a staunch antipodean ally did not have the advantage back then of Prime Minister Malcolm Turnbull’s famous declaration that Australia and the US are ‘joined at the hip’.
Labor governments surrendered Australian sovereignty in other ways in 2008 by agreeing to renew the lease on NWC without any conditions on how US nuclear-attack submarines could use the base.9 This could include undermining China’s ability to deter a nuclear war.10 Labor subsequently agreed to let the US install long-range ground sensors at NWC to help conduct space warfare against Russia and China in violation of Australia’s support for a treaty outlawing the militarisation of space. The public were not told about the significance of these developments, nor about similar changes at the Pine Gap satellite base. The NSA essentially runs Pine Gap’s role in intercepting a wide range of electronic signals that provide real-time targeting information for battlefield use by US forces.11 It also helps detect data on heat emissions from missiles, jet engines and ground explosions that feed into military operations, including space warfare, regardless of whether Australia opposes a particular US war.
Australian ministers are sometimes so keen to buy US military equipment that they reject good advice not to do so. For example, they insisted on buying the most important component of the trouble-plagued Collins-class submarine—the computerised combat data system—from a US firm that had never made one. It was a costly failure. The Howard Government then commissioned Malcolm McIntosh, a former chief of defence procurement in Britain, and John Prescott, a former managing director of BHP, to recommend a replacement. McIntosh and Prescott advised that a proven German system called ISUS rated best in all categories, and senior Australian defence officials agreed.12 But the Coalition defence minister, Peter Reith, decided in 2000 that he knew better and chose a US company, Raytheon, that had never built a combat data system for a conventionally powered submarine.13 Integrating the new Raytheon system into the Collins class was a difficult task that would need to be spread over several years. It is due to be included, without a competitive tender, in the big new French-Australian submarines on order.
Australian governments have also trusted Americans rather than experts from elsewhere to advise on decisions about purchasing equipment that is unfamiliar to them. In December 2016, the Turnbull Government appointed a naval shipbuilding advisory board chaired by a former secretary of the US Navy, Donald Winter. Three other board members are former US Navy admirals, and two are US civilians. Winter is being paid $1.468 million for his part-time work on this panel from April 2017 to December 2019; one former US admiral is getting over $964,000 and another almost $600,000.14 Australia’s two board members have no direct experience of shipbuilding, and the nine-member board includes no one from naval shipbuilding countries in Europe or Asia.15 Because no US ships are considered suitable, Australia is building big new British-designed frigates and extensively redesigning French nuclear submarines to use battery power. Although the US has not built a conventionally powered submarine in living memory, Winter was also appointed to chair the government’s expert advisory panel overseeing the competitive evaluation process for the Australian Navy’s new submarines.
A decade ago, Australian Defence officials were so keen to buy the US’s Lockheed Martin F-35 fighter planes that they ignored Pentagon warnings that more work was needed to fix faults in the aircraft. The defence minister, John Faulkner, announced on 25 Novembe
r 2009 that the government would pay $3.2 billion for fourteen F-35 fighters, for delivery in 2014. A little over two months later, US Defense Secretary Robert Gates announced that he would extend flight testing of the F-35, delay the purchase of 122 planes, sack the general in charge of the program, and withhold US$614 million from Lockheed Martin because it had failed to meet a number of key goals and benchmarks. Yet Faulkner said in his 25 November announcement, ‘Defence has done more analysis on this platform than any other platform in the acquisition history of the Australian Defence Force.’16 If so, how come it missed repeated warnings from the Pentagon and the US Government Accountability Office about the plane’s severe deficiencies?
There was no excuse for not waiting or, better still, for completely re-evaluating the reckless purchase, which Prime Minister John Howard initiated in 2002. It’s now clear that the F-35 will be vastly more expensive to maintain than originally promised. When two F-35s visited for the 2017 Avalon Airshow they could not depart Australia on schedule because they were not capable of flying in bad weather. The air show’s media release stated, ‘It is well documented that the F-35A aircraft requires modifications for lightning protection and these modifications have not yet been completed on the two visiting Australian aircraft.’17 Despite its stealth capability, the F-35 can be detected by over-the-horizon radars and other radars using different frequencies, and by optical, heat and other sensors.
In another example of misguided decision-making, in 2000 Defence chose the US aerospace firm Boeing to integrate AGM-142 missiles into the F-111 strike aircraft. Boeing fitted the missiles nine years behind schedule, and the F-111s retired a year later, leaving about 100 missiles that Defence said had cost $400 million and were ‘disposed of by explosive demolition’.18
Australia also seeks to win favour in Washington by buying US equipment on the basis that it is ‘interoperable’ with the Pentagon’s—but in most cases, non-US equipment would also be readily interoperable using a communications data link. The US conducts submarine exercises with a dozen navies without having trouble communicating with them. None, except Australia’s, has a US-made computerised combat management system.
Designing and manufacturing all components locally isn’t feasible for Australia at present, especially in complex electronic equipment. But costs could be much lower if Australian governments stopped buying equipment designed for participating with the US in high-intensity warfare around the globe. The existing low-cost 4000-tonne Anzac-class frigates have served Australia well. They should have been replaced with similar-sized ships instead of the 7000-tonne British Type 26 frigates now being built for a total cost of $35 billion. Likewise, many Australian observers are mystified by why the government didn’t choose twelve high-quality, well-proven German submarines of the kind that are operated by Israel, Singapore and other navies. They would cost around $10–$12 billion compared to the government’s $50 billion initial estimate for the twelve big redesigned French submarines, the first of which will not become operational until after 2035 and the last not until 2050. The Collins class is due to retire in 2025.19 A more realistic cost estimate for this complex project is over $80 billion in 2020 dollars, partly because a new version of the Collins class must be designed and built to avoid a capability gap.
Unlike normal joint exercises, embedding Australian troops, ships and planes in US forces raises serious sovereignty issues. Placing troops under foreign control effectively deprives Australian governments of the ability to pull them out if a conflict suddenly occurs. In 2013 the Gillard Government agreed to embed HMAS Sydney for almost two months in a US carrier battle group based at Yokosuka, Japan. The Sydney was under US command when Japan’s renewed emphasis on its claim to the uninhabited Senkaku Islands became a flashpoint with China.20 The battle group was widely expected to be the first responder in a clash over these tiny islands that Japan claimed after the 1905 Sino-Japanese war. The Senkaku are 38 kilometres from mainland China, 426 km from Okinawa and only 20 km from Taiwan, which Australia recognises as a province of China.
Similar sovereignty problems apply to Australian troops embedded under the US command in Hawaii. Australian military personnel are also deeply engaged in US war planning and command structures. Defence says there were approximately 450 Australian personnel serving in liaison and exchange positions in the US in April 2018. Approximately 130 were embedded within US command structures, and approximately thirty were employed as liaison officers ‘to exchange operational plans, information and concepts’.21
Before Australian participation is taken for granted, governments should state clearly that Australian forces will not engage in international aggression in violation of international law and Article 1 of the ANZUS Treaty.
36
SURRENDERING JUDICIAL SOVEREIGNTY
‘The significance of the ISDS [investor-state dispute settlement] arbitral processes is global. They have general implications for national sovereignty, democratic governance and the rule of law.’
Former High Court chief justice Robert French1
The Hawke Government’s abolition in 1986 of appeals to the British Privy Council was widely praised as an overdue move to ensure that the nation’s highest court was no longer subordinate to a court in another country. Later governments signed trade and investment treaties allowing nonjudicial bodies to overturn High Court decisions by using investor-state dispute settlement (ISDS) clauses in the agreements. Ceding sovereignty to international organisations to promote prosperity, human rights and environmental protection can have clear benefits, as can international laws prohibiting aggression, inhumane weapons, war crimes, and so on. The General Agreement on Tariffs and Trade and the World Trade Organization helped boost prosperity after World War II, but these arrangements have been largely supplanted by bilateral and regional agreements. Mainstream economists argue that these only shift trade from one country to another without increasing global trade.
A former High Court chief justice, Robert French, says, ‘Arbitration tribunals set up under ISDS provisions are not courts. Nor are they required to act like courts … Questions have been raised about their consistency, openness and impartiality.’2 As well as lacking effective appeal processes, French says their decisions have implications for ‘national sovereignty, democratic governance and the rule of law’.3 Even the name of a country where a case is being heard in secret is undisclosed.
These tribunals have a history of imposing hefty penalties on governments pursuing public policy goals in areas such as health, consumer protection and the environment. Unlike foreign corporations, Australian firms can only appeal against these policies in a proper court. Partly for these reasons, John Howard while prime minister resisted intense US pressure to include ISDS clauses in the Australia–United States Free Trade Agreement. Subsequent Coalition governments ignored Howard and included ISDS clauses in several bilateral and regional agreements.
Coalition ministers usually claim they obtain special ‘carve-outs’ to protect particular programs, such as the Pharmaceutical Benefits Scheme. But Greg Wood, a former deputy head of the PM’s Department with extensive trade policy experience, says ISDS clauses constrain the ability of future governments to introduce legislative changes to take account of how ‘issues, circumstances and community attitudes shift’.4
For example, there was no carve-out to protect Labor’s 2011 law requiring plain packaging and health warnings for tobacco. After Philip Morris Asia lost a High Court challenge, it took legal action against the government under an obscure 1993 investment agreement with Hong Kong. The company used the agreement to argue it should be paid vast sums for the ‘expropriation’ of its Australian investments. Former Labor treasurer Wayne Swan argued in a secret ISDS hearing in Singapore that Philip Morris Asia had only taken over the tobacco giant’s Australian operations to create a Hong Kong link to challenge the plain packaging law. The case ended when the tribunal found that the company had contrived its affairs to secure standing under the tr
eaty. Wood said Philip Morris’s argument that its intellectual property had been damaged by the plain packaging legislation ‘was not put to the test by the tribunal on its merits, and there is no certainty where it would have come out’.5
The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (also known as TPP-11) agreement covering Australia and ten other countries contains some ISDS provisions. The full text of TPP-11 (and that of other trade and investment agreements) is long and prolix. It was negotiated in secret, preventing the public from knowing what has being agreed on its behalf until the final version was eventually released.
The lack of proper public scrutiny of TPP-11 could prove extremely costly. Based on overseas examples, Australia could easily be hit with damages of many hundreds of millions of dollars. The prudent course is to reject ISDS clauses in such cases and focus on achieving the real gains available from freer trade.
PART 6
TRYING TO PLUG THE LEAKS
37
INSPECTOR TANGE INVESTIGATES
‘I do not consider the full or partial revelation as seriously or irretrievably damaging.’
Bob Hamilton, senior Defence official1
It was not until the dying days of the McMahon Government in 1972 that classified information started leaking on a noticeable scale. Before then, leaks rarely disturbed the equanimity of most senior mandarins. In 1976 JIO listed over forty journalists who had published significant intelligence leaks from 1972 to 1975, not counting leaks on defence and non-security issues.2 This change partly reflected the greater willingness in the West to subject secret institutions to tougher scrutiny following the lies the Pentagon had peddled about the Vietnam War and the congressional exposures of abuses of power by intelligence agencies. A new generation of Australian journalists was replacing an older one who had accepted, for example, that the public need not know about the damage that secrecy concealed during the British nuclear tests in the 1950s and 60s.
