Kevin Rudd (Griffith, Australian Labor Party, Shadow Minister for Foreign Affairs and Trade and International Security) Share this | Hansard source

In this place the government has said that its defence on the $300 million wheat for weapons scandal is that the Department of Foreign Affairs and Trade and the minister had no substantive role to play in considering whether the proposed AWB exportations to Iraq complied with United Nations sanctions or not. The government’s continuing defence since day one of this $300 million scandal has been that the government was a postbox to the UN Office of the Iraq Program and that all—I repeat: all—substantive decision making lay with the United Nations. (Quorum formed) The government’s plea, therefore, is that any legal and moral responsibility for a breach of UN sanctions lies exclusively with the United Nations and the Australian Wheat Board.

My central purpose today is to establish that this defence on the part of the government is unsustainable in law—both international law and, crucially, Australian law. Under regulation 13CA of the Customs (Prohibited Exports) Regulations 1958, the Minister for Foreign Affairs had an obligation to consider whether or not to grant permission for the exportation of goods to Iraq. This regulation required the minister to actually consider—that is, actively pay regard to—whether the exportation in question would or would not cause Australia to be in breach of its international obligations. The relevant international obligations were clause 4 of UN Security Council resolution 661, which required Australia to prevent its nationals, and any person such as AWB, from making available to the government of Iraq any funds or from permitting any funds to persons or bodies within Iraq except payments for foodstuffs in humanitarian circumstances.

Regulation 13CA(2) was incorporated by this parliament into Australian law to provide a means by which Australia, through the minister, could carry out the decision of the Security Council embodied in UNSCR 661 and, in particular, the requirement in that decision that Australia prevent AWB and its officers or agents from remitting funds to the Iraqi government. The obligation imposed by the parliament of the Commonwealth on the minister or his delegates is to consider whether he is:

... satisfied that permitting the exportation will not infringe the international obligations of Australia.

Regulation 13CA(2) positively requires that the minister is ‘satisfied’ of the requisite state of affairs. As a matter of administrative law the minister cannot be satisfied by an unexamined assumption, let alone by a process which deliberately refrains from the minister addressing the question. The satisfaction of the minister as a decision maker needs to be based on ‘findings or inferences of fact which are supported by some probative material or logical grounds’. Applying this matter of administrative legal theory and principle to the Customs Regulations, the minister therefore must be satisfied that the exportation will not infringe the international obligations of Australia.

It is at this point that the government contends that the Minister for Foreign Affairs was satisfied that these exportations of wheat did not infringe UN sanctions on the basis of one thing and one thing alone: that the United Nations authorised the payment of the related wheat contracts. In other words, it was a decision made by foreigners in New York working for the United Nations, not a decision made by Australians. Furthermore, the nature of the issue to be determined—that is, the infringement of an obligation of an international character owed by Australia—is a decision left to one of the Queen’s ministers of state for the Commonwealth, as the minister is under section 64 the Constitution. It is not contemplated that, given the subject matter of a decision to be made for the purposes of the municipal law of Australia concerning the prohibition of exports, foreigners employed by or acting on behalf of the United Nations make such a decision.

This is particularly clear given that the decision of the Security Council could be given effect only by each member state, through its own national measures, taking steps to prevent the illicit remittance of funds for the benefit of the Iraqi government. The only way the decision that states prevent nationals within their territories from remitting illicit funds to Iraq may be carried out is for the governmental authorities of each member state to enact and execute means of monitoring and prevention. The terms of regulation 13CA(2) of the Australian Customs Regulations fit that description perfectly. This is a legal responsibility that cannot be subcontracted to the United Nations or any other entity.

Furthermore, if, as appears to be the case, UN practice also evolved during the five years that this $300 million scandal ran so as to become a system of approval by default—that is, where approval would be granted unless there was a contrary voice within the UN Sanctions Committee within a stipulated period—then as a matter of substance and as a matter of Australian administrative law it is difficult to see how the Australian minister could rely upon such a default process as demonstrating that the minister should be satisfied that permitting the AWB export would not involve permitting the illicit remittance of funds to Iraq. If DFAT were aware of the default process, having encouraged its adoption as a streamlining of UN approvals, it would be even clearer that its minister could not treat a UN default approval as enabling him to be satisfied of the requisite state of affairs.

Applying these legal requirements imposed on the Minister for Foreign Affairs to the circumstances of particular AWB exports would involve consideration of the material available to departmental advisers, ministers and departmental officials at the relevant times. If that material—say, protests, concerns or warnings voiced by other countries, rival traders or other individuals—fairly raised the possibility of kickbacks or other forms of illicit remittances of funds to the Iraqi government then the minister was legally obliged to consider that material in making the minister’s determination to issue an export permit on wheat contracts under regulation 13CA of the Customs Regulations.

Therefore the minister or his delegate under law cannot subcontract his decision-making responsibility to the United Nations. That is why the government’s contention that only the UN and not the Australian government has decision-making power in the approval of wheat contracts has no foundation whatsoever in law. That is the law and the legal considerations in this matter are paramount. But, beyond the law, let us look at the morality of the government’s position as well. The government has said once again that it has no decision-making power in this matter but that it has, in fact, been subdelegated to the United Nations. This comes from the government whose Prime Minister has said in other contexts dealing with the United Nations:

... all of these issues in the end are going to be resolved by the Australian parliaments elected by the Australian people and not by committees of foreigners. ... in the end, we make these decisions.

Furthermore, there is the Prime Minister’s statement:

But in the end of course Australia decides what happens in this country through the laws of the parliaments of Australia. ... in the end we are not told what to do by anybody. We make our own moral judgments.

The Prime Minister’s most outrageous statement in this context was when he said in the context of the 2001 election campaign, ‘We decide who comes into this country—nobody else.’

The entire contention advanced by the government in their multiple engagements with the United Nations over that period of time, including in the context of the Iraq war, was that this parliament and the laws of this country were sovereign and could not be subdelegated to the United Nations. In this matter, where they find themselves in enormous political difficulty, the argument is this: that this parliament, this minister and these laws do not apply; what does apply only is a decision by a committee of the UN officials. This is a gross and fundamental contradiction of every argument advanced by this Prime Minister in the past on the United Nations as well as being in breach of law. (Time expired)

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