Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

I present the report of the Foreign Affairs, Defence and Trade Legislation Committee on the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2], together with submissions received by the committee.

Ordered that the report be printed.

I seek leave to make some commentary for five minutes on the bill as presented.

Leave granted.

It is unusual to be able to speak to a bill as presented to the parliament at this stage on the basis that normally discussion on bills occurs at either the second reading stage or the in-committee stage. The reason that I have made the request today is that this bill, having been brought to a Senate committee by the Greens, is essentially the bill of a minor party and, subject to later decision by government, is unlikely to proceed, so this would be the only opportunity to speak to the bill. I wish to speak for only five minutes to make a few remarks about the background to the inquiry.

The purpose of the bill, as it identifies itself, seeks to authorise members of the Australian Defence Force to serve within the territorial limits of Australia but they may not serve beyond these limits except in accordance with a resolution authorising such service passed and carried by each house of the Australian Parliament. Essentially, the bill seeks to alter the longstanding practice of this country whereby the executive arm of the government, through a national security subcommittee of cabinet, as I understand it, authorises the dispatch of troops of Australia to either warlike or non-warlike service, certainly being service outside the territorial limits of Australia. So the question before the committee was not whether parliament should debate or engage in discussion in its various forms on the merits or otherwise. The question before the committee, in its examination of the bill, was whether the bill provided a credible alternative to the practice that has developed in this country since Federation of the executive arm of government making the decision to commit troops overseas, along with the usual discussion in the community and often with, as of late, discussion in both houses of the parliament.

The committee, in taking that tack, was primarily concerned about how the provisions of the bill would operate in practice and it examined and analysed the bill from that perspective. The report of the committee outlines that there is extensive background to this particular bill going back something of the order of 25 years. It is the third or fourth time that such a bill, if not almost certainly identical in substance then certainly very similar in substance to this bill, has been brought to the parliament by either the Greens or minority party senators of different persuasions over the years. The content of the bill has been regularly examined by ministers and shadow ministers alike and on each occasion it has been examined by relevant committees of the parliament and there has been extensive discussion in the wider community. So the content of the bill is well known.

I offer a few brief comments in passing. There was something in the order of 30 or 31 submissions only to the bill. Almost 11 or 12 of those were pages of one submission only which indicated support for the bill. In that context the committee had written to hundreds and hundreds of bodies seeking submissions and to have had such a poor response, albeit all of those who did take the trouble to respond provided worthy submissions, made it clear that perhaps we did not get the widespread debate within the committee and within the wider community that might have been sought by those who were interested in the passage of the bill.

The committee has identified a number of deficiencies in the bill that need to be attended to by those who are interested in this debate if the bill is going to be brought forward this time or some time in the future for passage. Firstly, there is the treatment of classified material and, secondly, the constraint on the ability of Defence to mobilise its forces safely and effectively is so limited. There are serious problems with definitions within the bill and inconsistencies between the explanatory memorandum and the bill itself. Because of those inconsistencies, clearly the bill had the potential to capture routine or non-warlike military activities including activities such as peacekeeping, capacity building in other countries, humanitarian assistance, antipiracy, the rescue or extraction of Australian citizens from threatening situations overseas, covert operations such as those involving submarines and responses to maritime incidents such as harassment, sabotage and the like. Those sorts of definitional deficiencies distract from the—(Time expired)

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I seek leave to make a short statement of no more than five minutes.

Leave granted.

I thank the Senate for flexibility in being given leave to make a couple of brief remarks. The Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2] is a bill that I took carriage of as one of the first things that I did when I got here. As Senator Bishop has indicated, it does have a long history. It was first moved by Senator Colin Mason of the Democrats in the early 1980s and there has been nearly a quarter of a century of Senate consideration in one form or another of the proposition that the prerogative power of the executive to unilaterally put Australian men and women in harm’s way should perhaps be moderated in some form by the parliament. It was originally put forward in amendments to the Defence Act and then down the track it was formalised as a private senator’s bill. It has been amended a couple of times down the track.

The bill that I inherited was substantially similar to what Senator Andrew Bartlett last introduced in 2003 or a little later. Since the last substantive debate on this bill was had, we have had a very interesting object case study of what happens when the executive puts Australian troops in harm’s way—in the Iraq deployment—against the popular will. I was one of the hundreds of thousands of Australians who marched against the Iraq deployment for the reasons that even the government’s own intelligence agencies were telling the executive at the time: ‘This deployment is unwise. The reasoning is unfounded. We are even potentially being misled by some of our closest allies.’ If all that is not enough of a reason to reconsider the idea, then consider that a handful of people or constitutionally potentially even the Prime Minister alone can make one of the most important and grave decisions of all. The parliament debates many issues and it is still unknown to me why we have the principle that the parliament should not have some role in decision making to reflect popular will through this place, as imperfect as this building’s representation of popular will can sometimes be. At the very least, the Iraq deployment should teach us something about leaving these decisions in the hands of the executive alone.

The major parties, with some notable exceptions, appear to have bipartisan consensus that now is not the time. One notable exception is Melissa Parke, the federal member for Fremantle who put a submission into the bill to register her belief that the party’s policy should change in this regard. Some of the language in the committee suggests, as I think the chair, Senator Bishop, intimated earlier, that the principle is not completely without merit and that essentially this is an argument about detail, not intent. I do not intend to verbal Senator Bishop at this point, but I think the wording of the inquiry document that we are tabling this morning is great. It is a very useful, critical examination of the issues of some of the things that have been raised over time, but it does not go down the second step of reflecting on solutions, ideas, answers or propositions. If the bill is flawed but the basic principle is sound, then it is the work of this parliament and the obligation of this parliament to improve the bill and move it forward. If that initiative will not be coming from the major parties, then it will certainly be coming from us.

The principle is that Australia would not be alone in moving towards some form of parliamentary oversight of the deployment of troops into war-like situations or into wars. It is not something that should simply remain with the executive. Many of our closest allies, including the Westminster parliament upon which our foundation and precedent is based, are moving in this direction, and the debate in the United Kingdom is vastly more mature than it is here in Australia. So it is not a tradition that we wish to simply follow blindly.

On the basis of the small number of submissions—but acknowledging that many were of very high quality—the committee decided not to hold a formal parliamentary hearing but a hearing that was extremely valuable. I encourage all senators to read the transcript which we have appended as our dissent to the majority report. We spoke to senior ADF personnel, a former defence secretary, UN peacekeepers, ambassadors and advocates. We deliberately invited people who would not agree with us on all the issues, but they certainly brought something new to the debate and I encourage senators to look at that transcript.

There is not time now to rebut point by point the issues that have been raised by the chair, but we think this is only the beginning. This is something that will need to be debated further by the parliament. As former Clerk of the Senate Harry Evans said of the bill, its chances may be slim but its time will come. (Time expired)

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

I seek leave to make a short statement of no more than five minutes.

Leave granted.

I rise to speak in support of the remarks made by the Chair of the Senate Foreign Affairs, Defence and Trade Legislation Committee, Senator Bishop, on the private member’s bill, the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2], and on the report. I repeat what has been said before: there is no more serious decision taken by governments or executives than to send Australian troop overseas or to deploy them overseas in a war-like situation. Unfortunately, over the past 100 years or more governments have made that decision. If someone would like to look at the history, while there might be arguments in a couple of cases, in most cases Australian troops have been deployed with the general support of the Australian people.

In his speech, Senator Ludlum talked about a decision being made by a handful of people. That handful of people he refers to are the executive of the government of Australia. They are people who are informed and base their decisions on some information that is not readily available to other members of parliament—and neither should it be. If we are to have an effective security and intelligence organisation and effective intelligence and security advice given to the government of the day, no matter who that government might be, it is not information that is publicly available. What you are asking is for the parliament to be able to make a decision as to whether or not this country should send troops away to war without being in possession of all of the facts. We know it is impossible to get all of the facts.

I have served on intelligence and security committees and on foreign affairs, defence and trade committees for a number of years, as have Senator Bishop, my friend Senator Trood and others. Governments are in the position where they make the decision and they bear the responsibilities of those decisions. If the public does not agree with the decision that has been made by an executive or a government, then the democratic will of the people can be shown at any future election, and we have seen that happen. Winston Churchill, regarded as a hero in Great Britain, was turfed out before the Second World War had even finished by the people of that country. So executives and the executive arm of government do not make these decisions lightly. They make these decisions in what they hope are full possession of the facts. They listen to other points of view.

For us to change a system that throughout history has served Australia very well is not something that many of us would want to do. There will always be those who are opposed to war under any circumstances. They would do everything and use every means possible to prevent Australian troops going into battle overseas or fighting in causes outside of Australia’s shores. In fact, sometimes, as has been proved in the past, the best way to preserve our own security from within Australia is to make sure that we attack the cause of the problems if they happen to be outside of Australia, and we have done that in the defence of our country now for a number of years.

I totally support the remarks made by Senator Bishop and the report of the committee in the recommendations or the statements that they make in their report. I hope that decisions such as this, regardless of who will be in government in the future, are left to those who have the most information at their fingertips—the intelligence information and all matters pertaining to Australia’s security. I welcome the report and welcome the comments that were made before by Senator Bishop.