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

I am really proud to speak to this bill today. I am going to go into a bit of detail about how this has been a very long time coming, about some of this history of this bill and about the reasons why the Australian Greens believe that it is such an important piece of legislation. We on the cross benches do not put a huge number of private senator's bills before this parliament, but this is certainly the most important one that I have carriage of.

Today, we are debating the question of whether we as legislators and representatives of our electorates across this country are competent and able to make the decision about whether or not to deploy Australian troops to theatres of war. This is not about exercises; this is not about routine training. This is about who makes the final decision. Is it this parliament on behalf of the Australian public and on behalf of the families who will lose loved ones when we send Australians into harm's way? Who should make that decision? Should it be this parliament—this chamber and the other place—or should it be the executive? I am very pleased that we are debating this bill today.

The Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2010 [No. 2] has been known colloquially for several decades as the 'war powers bill'. It is about ensuring that a thorough debate is held in our parliament and that formal parliamentary endorsement is given before Australian governments take one of the most grave and serious responsibilities that a government can take: sending men and women to face danger, injury and—as we know—all too often death and to inflict danger, injury and death on others in wars overseas. In recent years, wars have been waged by our country without the support and approval, the deliberation and the consensus of this parliament. That is a mistake that this bill seeks to address.

I expect that as the debate proceeds we will hear from both of the old parties. Maybe I will be accused of being well intentioned. Maybe I will be accused of being a little naive.

David Johnston (WA, Liberal Party, Shadow Minister for Defence) Share this | Link to this | Hansard source

Yes.

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

Bingo; I think we have it. I am interested to point out that what the speakers will be declaring is that they hold that they are not competent or willing to make this decision. These senators have stood on one side of the chamber or another and listened to the stories as defence ministers have informed this parliament—as they have had to over the last couple of years—that another Australian life has been lost. Are we competent to make those decisions? Are we the ones who should be making those decisions? I believe as a representative of the Australian people that we should make these extraordinary decisions on behalf of the nation. If we are not willing to take on that responsibility, what on earth are we doing here and who do we believe is the right person?

It is appropriate to consider the costs associated in not ensuring that a proper debate is held before a deployment, in not ensuring that a war is necessary and legal. People need to understand the costs in lost lives and loss of international standing and credibility and the enormous financial costs of war.

We saw in 2003 what can happen when a handful of people make a decision to go to war in secret, behind closed doors and on a false premise. Australia was involved in an illegal war in Iraq that was justified using evidence later shown to be false. There was no proper debate before sending troops to war in Afghanistan, either. A debate was held more recently on the Afghanistan deployment at the behest of the Australian Greens. Senator Brown negotiated that into the agreement with the government last September because that debate had not been had in the 10 years of that deployment. We found later from the WikiLeaks drop exactly what our leaders think about what is going on in Afghanistan. We found out more from those revelations than from anything that the government or opposition told us in that parliamentary debate.

I agree with the foreign minister, who reportedly said that the Afghanistan deployment 'scared the hell out of him'. It is indeed a difficult, dangerous, bloody and grim situation. This war is not going well. We learned also from WikiLeaks that the Australian Federal Police Assistant Commissioner, Frank Prendergast, noted that the odds were stacked against success. Current training programs are hampered by illiteracy, corruption, drug addiction and insurgent penetration within the trainee body. All of these things were disclosed by the cables. He believes that a successful police training program will take 20 years to be effective in Afghanistan. None of that was told to this parliament when the debate was had at the behest of the Greens. Ministers and even shadow spokespeople have to put the best face on it: 'Everything is going well; we just need more time. Don't worry; everything's fine. We know best.' And we know that that is not true.

Afghanistan needs institution building, not incendiary weapons. Afghanistan needs professional police, not police trained by the military, which tends—and history has shown this over and over again—to result in paramilitaries rather than community protectors. Afghan women, their suffering used as a symbol so cynically to justify war, are no safer today. Amnesty International says that women experience more insecurity and risk of sexual violence than during the Taliban era. A June 2011 survey by the Thomson Reuters Foundation showed that Afghanistan was the worst place in the world to be a woman—the worst place in the world 10 years into an occupation. The mission there is flawed.

The majority of Australians want our troops brought home from Afghanistan because they are increasingly aware that the mission is flawed. According to a Lowy Institute annual poll of Australians on foreign affairs issues, support for the war in Afghanistan continues to erode, with 59 per cent of Australians now opposed to Austra­lia's continued military involvement. And the Australian parliament, on behalf of those people, can do nothing about it under the current set-up.

In the last couple of days we have had a shameful and haunting reminder of what it means to go into an illegal war. It means that crimes are committed in our name. I refer of course to the fact that Australia's defence forces have been revealed to have engaged in illegal activities, facilitating illegal detention practices in Iraq, including at the notorious Abu Ghraib prison and in Afghanistan I refer to the fact that an Australian officer was the primary author of the manual for processing prisoners in Iraq. He denied access by the Red Cross to detainees and said: 'The Red Cross call it ill treatment. We call it successful interrogation techniques.' That was a serving military lawyer. That is according to materials extracted under FOI by the Public Interest Advocacy Centre.

The 5 July editorial in the Sydney Morning Herald remarked on the impli­cations of the situation with incredibly strong language, something very rarely seen in Australian discourse. The editorial says, 'What is it that we are fighting for? If the purpose of sending troops to Afghanistan and Iraq was to uphold the right of citizens to equality before the law, the rule of law, our submission to the American way was a betrayal of that goal.' This editorial discusses our relationship with the United States without dismissing the importance of the alliance—and I again hope that senators will not waste the time of the chamber by accusing us of having no fidelity to that alliance. That editorial uses words like 'cringe', 'self-abasing', 'willing humiliation' and 'abject submission' and calls for the drawing of firm and polite lines with our ally. It says that our respect for the United States should not require abject submission and that our beliefs help define what sort of country we wish to be.

Exercising our democratic institutions and getting the support of the parliament to send our forces into a war or warlike situation should be one important principle of the Australia way. It would safeguard us from betraying other fundamental principles around the law and respect for human rights. This bill aims to ensure that, as far as is constitutionally and, importantly, practically possible, ADF personnel are not sent overseas to engage in warlike actions and deployments into combat zones without the approval of both houses of parliament. It is a very simple bill and I hope that senators have taken the time to read it. I know that Senator Faulkner has because, at the time that I introduced this bill, he was the defence minister. I can quite happily acknowledge now that I spoke to Senator Faulkner at the time and he told us that there was no support from the government on this bill historically. But he then at least paid this parliament the courtesy of reporting on the situation in Afghanistan. We could tell how much that cost you, Senator. Suddenly you are out attending funerals. You are getting briefings on just how serious the situation is there. You did the parliament the courtesy at least of pausing the rowdy and chaotic nature of the debate, which so often take off in trivial directions in here, by reporting on exactly what Australians were facing in the zones to which they were deployed.

But then the minister sits down and nothing further happens. Maybe we can seek leave to make a short statement of dissent or acknowledgement, but the parliament cannot actually do anything about the situation that we as the representatives of the Australian people find ourselves in. If it is not possible, if we are not competent as legislators to hold this important trust with the Australian people, what is it about us that makes us different to legislators in Denmark, Finland, Germany, Ireland, Slovakia, South Korea, Spain, Sweden, Switzerland and Turkey, where troop deployment is set down in constitutional or legislative provisions? Some form of parliamentary approval or consultation is routinely undertaken in Austria, the Czech Republic, Italy, Japan, Luxembourg, the Netherlands and Norway.

What is it about us as Australian legisla­tors that we think we are not competent to step up and take responsibility for the bloodshed and misery that we would find ourselves in the position of having to duly authorise at some time? I think it is an act of absolute cowardice to avoid taking responsi­bility, as we do in here on other matters every day on one side of the chamber or another, knowing full well the consequences of the vote that we are taking.

The relative maturity of the debate in the UK on the war power—and the invasion of Iraq was vastly more costly in terms of British than in terms of Australian lives—has resulted in several thorough inquiries and a new parliamentary convention whereby the executive commits to trigger a debate leading to a resolution of the parliament before a deployment is undertaken. So in the Westminster parliament—the origins of our own legislature—they are having a debate of vastly greater maturity to that which we have been subject to here in Australia, and they have changed. I think they have had a far more honest conversation with themselves about the disaster of Iraq and the ongoing misery in Afghanistan.

The bill before us was considered by the Senate's Foreign Affairs, Defence and Trade Legislation Committee, which reported in February 2010. Unfortunately, despite receiving 31 public submissions, the majori­ty of the committee declined to hold any public hearing to consider the legislation. It considered there was nothing really new to add to the debate.

Legislation seeking parliamentary input into decisions to send our troops to war was first put forward in the Senate in 1985. That is how long it has been, not since the debate begun, but since this parliament has had the instruments necessary to change this. It was put forward in 1985 by the former Australian Democrat Senator Colin Mason. In his second reading speech he pointed to the history of Australia's involvement in the Vietnam War. Not only was the parliament not consulted in the deployment of Austra­lian defence personnel to fight in Vietnam but, as Senator Mason pointed out at the time, the Australian public were blatantly lied to by the government of the day—it sounds familiar doesn't it?—who stated that the deployment was in response to a call for help from the government of South Vietnam. The truth, of course, was completely differ­ent. It was a request for support that came from the government of the United States. Four hundred and ninety-two members of the ADF, including 187 conscripts, were killed in that war.

When that bill was debated in this chamber on 17 April 1986, the then minister, Gareth Evans, said that the government sympathised with its underlying philosophy but the practical difficulties inherent in its application were such that it could not be supported. The bill was later reintroduced by Senator Mason's successor in New South Wales, Senator Paul McLean, and remained on the Senate's Notice Paper throughout the 1990s. Similar legislation was reintroduced in the names of former Democrat Senators Bartlett and Stott-Despoja in March 2003, a week after the Senate quite clearly voted against the decision to commit Australian troops to war in Iraq.

There is something interesting. A resolution was passed and the executive took absolutely no notice of it whatsoever. That is why we need this bill. The Labor and Liberal parties combined in the Senate to vote down a motion from Senator Bob Brown for a Senate committee to examine the legality of the government's deployment of troops to Iraq, the likely implications for international law of this action and what mechanisms could be used to require parliamentary consent for deployment of ADF personnel to hostilities overseas. We now know that the justification for providing Australian troops and assets to the Iraq invasion was, just as with Vietnam, a calculated deceit, driven primarily by a desire to provide political cover for the United States government's military agenda.

When this legislation was debated by the Senate on 10 February 2005, which I think was the last time it was subject to any kind of debate in this place, former Labor Senator Linda Kirk expressed concerns about ambiguities in legislation, whilst some senators who spoke against the bill simply relied on supporting the Westminster tradition—which has now changed—to justify the status quo. Others asserted that there were definitional uncertainties as to how the bill would operate in practice. The majority Senate committee report tabled on the inquiry into this bill in February of last year, which was undertaken by the foreign affairs, defence and trade committee, said something interesting:

… while wholeheartedly supporting debate in Parliament on any anticipated, proposed or actual deployment to overseas warlike operations—

which is the phrase that is used in the bill—

the committee cannot endorse this proposed legislation. … the bill leaves too many critical questions unanswered … while well intended—

there's that phrase again—

the bill may have unforseen and unfortunate consequences that need to be identified and resolved before further consideration could be given to proposed legislation.

I find that language and the nuances in there really interesting. The foreign affairs, defence and trade committee majority repre­sentation by the old parties did not say this was a bad idea. It said there were ambiguities and questions. It said this was difficult but it did not go ahead and propose any of the answers. It did not seek to push the debate or pursue it any further but it did not actually write the idea off because of course you could not, as legislators signing up to a committee report like that, tell the parlia­ment, and through the parliament our constituents, that we were not competent to take that responsibility. Of course the committee did not do that.

So, starting 25 years ago, right through until a Senate committee examined it last year, there were repeated comments express­ing sympathy for the intent of the bill while alleging practical problems with the content. Let's go into those details. The committee said the proposal should be examined carefully by various government depart­ments—but, of course, the committee did not want to hold a public hearing to hear from them directly.

Since I have been a member of the Joint Standing Committee on Foreign Affairs, Defence and Trade—and I will be staying on as a full member of the committee—I have received many letters, submissions and accounts from former soldiers and current serving defence personnel that have helped me better understand what, in my first speech, I put only in terms of financial costs. There are other enormous costs. There are open wounds in the lives of many Australians who have experienced the wars in Afghanistan and Iraq. As a parliament and as a society we must get better at supporting the people who return from war damaged and we must take responsibility for the people whose lives are ruined. There are such enormous costs.

The debate on who should be empowered to send Australian men and women to war is an enduring and persistent one. While it has been underway for decades now, each decade has brought lessons and experiences to inform and deepen the debate—and the sequence of unfortunate decisions leading Australian Defence Force personnel to be engaged in an illegal war in Iraq has I think prompted a renewed sense of its relevance. What I hope senators will address during the course of the debate, before it is adjourned later this afternoon, is that this bill is not intended to take out of the hands of the ADF the power to advise the executive. I am not asking parliament to take strategic decisions about how a deployment should occur and where assets should go. These are military decisions. We in the parliament are charged with making political decisions and we will leave the military decisions to the experts.

But the decision whether or not to deploy is not a military one, in my view. The parliament does not need to be fully informed of operationally sensitive infor­mation that would disadvantage us if an invasion or some form of deployment were to take place. That is a key distinction that I hope I am able to leave with senators as this debate gets underway. We are not seeking to usurp the power of the ADF or to look over their shoulder as these decisions are undertaken. But the decision whether or not to deploy is surely not a military one. We do not live in a military dictatorship. We do not live in Burma or North Korea. These are political decisions and we have to be prepared to take the responsibility.

When the minister stands in the parliament to tell us about the latest death of a soldier in Afghanistan, we fall silent. But we very rarely hear about the deaths of those who are not Australian soldiers—the enormous number of civilians killed accidentally or, as it is called, collaterally. We do not ever pause and reflect on that because it would paralyse this parliament if that were to occur. If we paused every time an Afghan civilian was killed, there would be no time to legislate. So we do not do that.

The last thing I would like to leave with the Senate is that we are not seeking to take decisions on operational matters out of the hands of the ADF. We are not seeking to have parliament briefed on sensitive defence issues that would give our purported enemies the upper hand. That is not what this bill seeks to do. This bill seeks to empower the parliament. If it is appropriate for this parliament to spend days and days debating all the matters we are employed to come in here and take responsibility for—such as aircraft safety regulations, livestock exports, road safety and health—why on earth are we happy to delegate away our responsibility on the most serious decision a decision maker can make: the deployment of Australians into hostile situations from which they might not return? All I am asking for is the opportunity to have that debate in here.

Finally, I think we need to change the way we make these decisions. As other democra­cies have evolved, subjecting the war power to a democratic process has become routine. It is even in the United States Constitution. As one of this bill's strongest and most prominent advocates recently said—I am speaking of our dear Harry Evans, the former clerk—it's chances may appear to be slim at present— (Time expired)

John Faulkner (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I have often argued that, of all the responsibilities of a national government, nothing is more important than the defence of the nation, its people and their interests. I also made the point to the Kokoda Foundation last year—or perhaps it was in late 2009—that force of arms alone cannot discharge that responsibility. In the modern world, we must confront and confound a far more varied range of threats and balance a far more complex range of priorities than purely military ones. The security of any nation and the safety of its citizens must depend on intelligence and diplomacy, on military power and moral suasion, on international cooperation and multinational coalitions. How the parliament and elected governments discharge this heavy respon­sibility is something that does warrant the closest parliamentary scrutiny and consider­ation.

So I welcome the debate on the critically important issue of parliamentary approval for the deployment of Australian troops overseas. And I note too that the Australian Greens—and, before them, the Australian Democrats—have over a number of years attempted to introduce legislative amend­ments to require such an outcome. The first of many versions of this bill was introduced by former New South Wales senator Colin Mason, from the Australian Democrats, in 1985. Senator Mason introduced the Defence Amendment Bill 1985, which sought to require parliamentary approval in most circumstances before Australian troops could be deployed overseas. The bill proceeded to the second reading stage but, without government and opposition support, it did not pass. During debates over the deploy­ment of Australian troops to Iraq in 2003, Democrat senators Andrew Bartlett and Natasha Stott-Despoja introduced a private senator's bill, the Defence Amend­ment (Parliamentary Approval for Australian Involvement in Overseas Conflicts) Bill 2003. That bill proposed to repeal and substitute section 50C of the Defence Act 1903, which allowed the deployment of Australian troops overseas and required both houses of parliament to approve a declaration of war and commitment of troops overseas. That bill did not pass. Senator Andrew Bartlett reintroduced a similar bill on 13 February 2008, the Defence Amend­ment (Parliamentary Approval of Overseas Service) Bill 2008. Again, it did not pass.

Also, for the record I note that the final report of the 2020 summit from May 2008 includes on page 347 its support for 'an undertaking to allow a vote in both houses of parliament before (except in case of emergency) committing Australia to war or to a warlike situation'. The final report states that participants voted yes on this idea. The report goes on to say:

... it seems like a good idea and there is a provision in case of an emergency. Examples from other democratic countries considered.

Senator Ludlam of the Australian Greens then introduced the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 (No. 2) to the Senate, on 17 September 2008. He said at the time:

The purpose of this bill is to ensure that, as far as is constitutionally and practically possible, Australian Defence Force personnel are not sent overseas to engage in warlike actions without the approval of both Houses of the Parliament.

On 20 August 2009 the Senate Selection of Bills Standing Committee recommended that the draft bill be referred to the Foreign Affairs Defence and Trade Legislative Committee for report by the end of 2009. The committee did then report in February 2010. It recommended that the bill not proceed. The committee said:

It is of the view that the bill leaves too many critical questions unanswered to be considered a credible piece of legislation. It believes that, while well intended, the bill may have unforeseen and unfortunate consequences that need to be identified and resolved before further consideration could be given to proposed legislation.

However, the committee did support debate in parliament on any anticipated, proposed or actual deployments to overseas warlike operations. Senator Bishop, as chair of the committee, said that the committee was mainly concerned with how the provisions of the bill would operate in practice. I think some of Senator Bishop's words are interest­ing. He said:

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.

The report included a dissenting report by Senator Ludlam, who indicated that the Australian Greens were disappointed in the report's findings. But, not to be discouraged, Senator Ludlam later that year introduced the Defence Amendment (Parliamentary App­roval of Overseas Service) Bill (No. 2) 2010 into the Senate. Again, the purpose of the bill is to prohibit any member of the Australian Defence Force from serving outside of Australia's territorial limits without parliamentary approval, subject to some specific exemptions.

To complete the record, most recently, on 15 November 2010, the member for Melbourne, Mr Bandt, introduced the Def­ence Amendment (Parliamentary Appro­val of Overseas Service) Bill 2010. Again, the purpose of that bill was to prohibit any member of the Australian Defence Force from serving outside of Australia's territorial limits without parliamentary approval—again, subject to specific exemptions. That bill was not progressed.

So the parliament has had a number of opportunities over the past quarter of a century to debate the issue of whether its approval should be obtained before the ADF is deployed overseas for warlike operations. The existing practice in Australia is that any decision to deploy members of the ADF beyond Australia's territorial limits is at the sole prerogative of the executive of the Commonwealth. I want to say here and now that I have supported and continue to support that power remaining a prerogative of the executive.

Under Australia's constitutional arrange­ments the executive power of the Common­wealth is vested in the Queen and exercisable by the Governor-General, who customarily acts on the advice of the government of the day. This power includes the decision to deploy the ADF to undertake combat oper­ations as well as a range of activities other than war fighting, such as peacekeeping operations and disaster relief. In practice, this power is exercised by the Prime Minister and other ministers. These decisions do not require an act of the parliament or a decision of the parliament. They are an exercise of executive power under section 61 of the Australian Constitution. The current govern­ment—consistent with the views of previous governments—regards this longstanding constitutional practice as appropriate and does not support any proposal to alter these arrangements.

The February 2010 report of the Foreign Affairs, Defence and Trade Committee on the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 (No. 2) found that the bill 'leaves too many critical questions unanswered' and 'may have unforseen and unfortunate consequences'. Although I know it is often argued that parliamentary approval is required in certain other countries, it is not a logical conse­quence to argue that such a position should apply in the Australian context. While it is true that the forms of parliamentary approval or parliamentary consultation are required in some other systems of government, it is very important to realise that such comparisons or analogies are, if not invalidated, then certain­ly complicated by the major differences in the constitutional frameworks of these countries. I stress again: any decision to deploy military forces to combat is a most onerous and serious decision for a govern­ment to make. It is a very, very heavy responsibility. It is a life and death matter.

The bill that we are debating today does raise crucial issues that go to the powers of ministers, including constraints on those powers, the role of the executive and the parliament. It also raises some very critical issues about possible consequences—I would say perhaps unintended consequences. The issue of placing constraints around a government's capacity to respond with the required urgency to an event remains a very serious concern. There has to be flexibility when time is of the essence. The risk of an operation commencing but then not receiving the approval of either house of the Common­wealth parliament—either the Senate or the House of Representatives—is a major concern to me. I never want to see Australian Defence Force personnel placed in a position of being involved in a dangerous operation and finding out subsequently that they are without legal authority or even legal protections. I am also concerned about how those defence operations that may be clandestine in nature or may be considered preparatory deployments are able to be accommodated within the provisions of this bill, particularly where the definition of 'warlike' and 'non-warlike' service can be unclear or ambiguous.

We live and operate in the real world, and any legislation in here that we enact must be able to work in real life situations and it must be able to pass the real world test. Consistently, as Senator Ludlam said in his speech, I have not supported this legislation, but I do not want my opposition to the bill to be misinterpreted. I am strongly of the view that openness and transparency in govern­ment are at the heart of the democratic contract. I believe the public record shows, or I hope it does—actions speak louder than words on this—I have been very committed the entire time I have been in this parliament to ensuring that matters, including matters concerning the involvement of the ADF in conflicts, are open to the fullest possible public scrutiny and debate. When I was Minister for Defence I produced very regular and very detailed ministerial statements to the parliament on Afghanistan, and I very much commend that approach to ministers and to the parliament.

While the government is not required to consult parliament after deploying forces overseas, inevitably we have seen some very robust parliamentary debate ensue after such deployments. I acknowledge that the parliament is in effect asked to endorse, if you like, a decision—if it is asked to endorse it at all—taken by the executive. However, there have been times when the very robust debate, including in this chamber, has led to the opposition of the day, and at least one house of the Australian parliament, opposing Australia's involvement in a conflict, or called for parliament to be better consulted on the war. The best example of this occurred in relation to Iraq in February 2003. I commend the amendment I moved to the ministerial statement of the then Leader of the Government in the Senate, Senator Hill, about Iraq. I proposed that the government of the day—that is, the Howard government—be censured:

… for forward-deploying Australian troops to a potential theatre of war with Iraq in the absence of any United Nations authorisation and without revealing to the Australian people the commitments on which that deployment was based;

… declares its opposition to a unilateral military attack on Iraq by the United States—

and went on after a number of other elements to the motion to declare—

that it has no confidence in the Prime Minister's handling of this grave matter for the nation.

And that was agreed, as Senator Ludlam said, by the Senate.

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

But we could have stopped it.

John Faulkner (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Yes, but that was the view of the Australian Senate. You have to be fair about this; it was not the view of the House of Representatives, as you know. It is possible, of course, for the House of Representatives on a matter such as this to pass a motion of want of confidence in a Prime Minister. It did not occur on that occasion, and it has not occurred in Australian history since Federation. But that is just a fact of life. What Senator Ludlam asks us to do—and I think it is a perfectly reasonable question—is to make clear that there is no misunderstanding on the issue of whether the decision to deploy is a military decision, and I see Senator Ludlam nodding. The decision to deploy is a civilian decision. It is a matter for the civilian government. It has been since Federation, it is now and I for one hope like hell it always will be. It must be. The issue here, Senator Ludlam, is which civilian authority. I respect your view that it should be both houses of the parliament, but you asked for clarity on this issue and you will get it from me. No question—it should be a civilian authority. In my mind, no question that it should be executive govern­ment. I, too, accept the principle that it should be parliaments and only on certain occasions executive governments. It is a very risky business for civilians to get into operational matters. It is a very risky business indeed, and I support that principle, too, absolutely. I support the current system, but I do so on very strong grounds. (Time expired)

David Johnston (WA, Liberal Party, Shadow Minister for Defence) Share this | Link to this | Hansard source

I commence my response to this legislation, the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2010 [No. 2], by adopting and supporting the words of Senator Faulkner, who is very knowledgeable and wise on these matters and has had the heavy burden of responsibility upon him personally. I take what he said as a very good litmus test of the way to analyse this important responsibility. This is a very serious matter. The operation and mechanics of democratic principles in the deployment of troops beyond our borders is a matter of the utmost seriousness. It is at the very top of our responsibilities as parliamentarians. This bill is important and, to that extent and the seriousness surround­ing it, I thank Senator Ludlam for bringing it before the chamber and the parliament because it is an opportunity to re-evaluate and re-examine our disposition with respect to this very important subject.

Having said that, and having adopted the disposition and sentiments of Senator Faulkner, the opposition's perspective on this matter is very clear. In reviewing what has gone before, I am taken to the Senate Foreign Affairs, Defence and Trade References Committee report back in 2005. History there has set out that in 1985 Senator Colin Mason introduced to the Senate a bill of a similar nature to the one that Senator Ludlam has put before the Senate. He explained:

The purpose of this Bill is to place the responsibility for the decision to send Australian troops overseas with both Houses of Federal Parliament subject to exceptions covering the movement of personnel in the normal course of their peacetime activities and the need to take swift action in an emergency.

The bill was adjourned or lapsed in 1986 and was not pursued. Senator Paul McLean of the Australian Democrats picked it up and introduced it again in 1988 and, indeed, it was in very similar terms to Senator Mason's bill.

On 27 March 2003, similar legislation—namely, the Defence Amendment (Parlia­ment­ary Approval for Australian Involve­ment in Overseas Conflicts) Bill 2003—was introduced by Senator Andrew Bartlett and Senator Natasha Stott Despoja of the Australian Democrats. It was restored to the Notice Paper on 17 November 2004 and debated in the Senate on 10 February 2005. The arguments in favour of and in opposition to the legislation built on those of 1986. A number of senators participated in the debate, which was then adjourned.

Finally, we come to the bill which was introduced by Senator Ludlam on 17 September 2008. I reiterate that it is a very healthy and useful process for us all to re-examine this very important piece of democratic practicality and principle in the way we deal with the deployment of Australian troops beyond our borders—overseas. Yes, there are a number of countries that do have strict parliamentary approval requirements. In the debates that have gone before, I note that Senator Hogg and Senator Marise Payne listed countries in 2005 where such approval was not necessary. They included Canada, Belgium, France, Poland, Portugal and the United Kingdom. The significance of mentioning those countries, particularly Canada and the United Kingdom, is that they have a particular relevance and I think we have a reasonable understanding of the synergies that exist between this parliament and their parliaments. In this regard, Senator Payne noted that different parliamentary systems, different parliamentary chambers, make different parliamentary arrangements. That is a very important point. The Senate report goes on to say of the committee:

For example, it noted that in some cases parliamentary approval may be needed to declare war but not to deploy troops and certain military service may not require approval.

So there is a huge definitional and threshold-defining requirement for us to tie down how the parliament will, in the first instance, deal with the proposition that Australian troops be deployed overseas to apply lethal force. The UK government has debated this matter on a number of occasions. As the report says:

… the UK Government recognised that the main challenge was to formulate a process that would be 'sufficiently adaptable to be able to respond quickly and flexibly to the variety of situations that could arise'.

I reiterate those words, 'to respond quickly and flexibly to the variety of situations that could arise'—situations which may not be within our understanding or contemplation, given past history. The report continued:

It pointed to difficult issues that needed to be resolved such as allowing for exceptional circumstances, the need for urgent deployment, potential dangers of a retrospective approval process, security implications from the release of information, the timing of the vote and definitional issues—

as I have mentioned—

such as 'armed conflict'.

These concepts are all very fluid and can be, and very much will be, the subject of lengthy discussions.

The main question which was before the Senate committee, however, was not about the principle of parliamentary debate or approval but about whether the bill provided 'an effective or credible alternative to the current practice', and I think that is also a really important consideration for the Senate. Will the bill work in a way that imparts confidence and effectiveness in dealing with circumstances that require immediate attention? The committee was concerned, as I am, that this process will not fulfil those obligations or requirements.

There are also concerns about the level of information that the chamber may have. As Senator Faulkner quite rightly emphasised, this is the real world: our strategic position cannot be disclosed to the public; our surveillance and reconnaissance information, its sources and its veracity cannot be disclosed or debated. So, almost of necessity, the debate will have to be held with all of us with one or both of our hands tied behind our backs with regard to classified material. Hence the parliament will be in a worse position, a much worse position, than the executive in terms of knowledge and understanding of the circumstances surroun­ding a proposed deployment. Indeed, former senator Gareth Evans sympathised with the philosophy underlying parliamentary appro­val of such deployments, but he also said in 1986, when dealing with the original legislation:

… situations may develop where there is a need to determine measures to be taken without the publicity associated with debate in the Parliament; situations where public knowledge could limit our strategic options and indeed put our forces at risk.

They are very serious words. I think they very much determine where the government and the opposition sit on this particular question. Back in the debates of the 1980s, a very learned and talented former senator, Senator David MacGibbon, also identified a problem with the use of classified material. As the committee report states:

He argued that a decision to commit troops could be made 'only in the full knowledge of all the circumstances—

as I have indicated—

knowing the diplomatic circumstances that are involved, the strategic involvement and all the military and economic factors'. In his view, these must, 'be weighed up in the light of a careful assessment of all the options that are open to the government of the day. That simply cannot be done in open debate in any chamber of this parliament'.

Again, I think this is where this principle can lie with respect to the realities of and the necessity for information. Two decades later, senators opposing the 2003 version of the bill raised similar concerns—I also raised those concerns. As the committee report says:

Representing both major parties, they argued that the executive is the only body that has 'full and proper knowledge of military and strategic decisions and the one-on-one contact with Australian allies' to be able to make a considered and well informed decision. In their view, Parliament does not have access to all available intelligence and the complete range of advice from the Public Service.

Of necessity, a debate regarding the approval or otherwise of the deployment of Australian troops beyond our shores can never be a fully informed debate. Accordingly, the underlying problems with the mechanics of this legislation clearly mean that we cannot support it.

The senators of the day in 2003 and 2005 similarly rejected the alternative of providing parliament with all available intelligence to enable a fully informed debate. In their assessment, such an arrangement would be both impractical and detrimental to security. In particular, they were concerned that the disclosure of classified material, such as specific details on a deployment or intelli­gence advice given to governments on a confidential basis, would compromise the safety and security of such an operation. I would like to quote former senator Linda Kirk, who made quite a contribution in her short time as a senator here. During the debate on this topic in 2005, she said:

There will often be cases where information simply cannot be made public. If it were to be made public it could very much undermine our strategic position when we are about to embark on a war. This could not even be overcome by holding a secret session of parliament, or something of the like, because that is contrary to our system of government and it would not be the proper manner in which to do this.

As the committee report states:

For the major parties, the problems were serious—the inability of Parliament to have access to all the information needed to make critical decisions—

and to hold an informed debate—

concerning the deployment of Australian ADF members or disclosing information that could jeopardise the safety and success of a military operation.

That is a fundamental principle that we need to adhere to in the context of a realistic approach to the circumstances of the day.

The committee identified a number of deficiencies in the legislation it was consid­ering, which, as I said, was virtually identical to the bill before us today. As the committee's report said:

These deficiencies relate to the uncertainty and confusion about the use and application of terms such as war and non-warlike service and assumptions made about their application. The committee is also concerned about the nature of the resolution to be agreed to by both Houses of Parliament and about the extent to which it could impose conditions on deployment.

The debate on the matters in this bill has over the years been very thorough; these are important matters. That being the case, it is absolutely vital that, given our involvement in Iraq and Afghanistan, we revisit these matters on a regular basis. I think this debate has been a very healthy one, and I think that the issues have remained the same. In my submission, the detriment in this bill clearly outweighs the principle. No matter how positive are the underlying principles of this bill—and the bill is laudable—the imprac­ticality of full disclosure to the parliament in a strategic sense and where intelligence, diplomacy and classified documents are concerned means that we must continue with the system as it now stands. After all, it has served us well.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I am pleased to have this oppor­tunity to speak on the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2010 [No. 2], the initial version of which the Greens introduced in 2008. This bill was the subject of an inquiry by the Senate Foreign Affairs, Defence and Trade Legislation Committee, which was chaired by my colleague Senator Bishop and reported in February last year. As the Senate knows, the committee's majority report recommended against proceeding with this bill, so it will come as no surprise when I say that the government will not be supporting it. Given that the opposition parties have today indicated that they too will also be opposing this bill, it is clear that we are now embarked upon nothing more than a ritualistic exercise.

This bill will not pass the Senate, and the Greens know why it will not. The Senate knows all the arguments for and against this bill, because this bill is the latest in a succession of similar bills stretching back to 1986 which were moved by the Greens and before them by the Australian Democrats. On each occasion that these bills have been brought before the Senate, the same arguments have been trotted out by its movers on the crossbenches and the same counterarguments have been trotted out by the government and by the opposition of the day. Senator Ludlam, in the second reading speech he incorporated into the Hansard in September last year, has done no more than repeat the arguments that were made by former Senators Stott Despoja, Bartlett, McLean and Mason in debates on earlier manifestations of this bill. So it is no surprise that the arguments I am going to put forward in opposition to this bill are essentially the same arguments that have been put by Labor and the coalition parties in earlier debates; nor is it a surprise they are the same arguments that were made in the majority report of the Senate Foreign Affairs, Defence and Trade Legislation Committee.

The gist of the bill and of Senator Ludlam's second reading speech is that the executive of government should not have the power to commit Australia's defence forces outside Australia without the approval of both houses of parliament. The bill does provide an exemption from this requirement in an emergency situation, when forces could be deployed via proclamation by the Governor-General, but such a proclamation would have to be retrospectively approved by both houses of parliament. The justification that its advocates have put forward for this proposal is that a decision to commit Australian forces outside Australia is too important to be left to the executive government. On the face of it, this is an attractive proposition—there are few more important decisions a nation can take than to send its armed forces into harm's way. The decision to put the lives our service men and women at risk is indeed a grave responsi­bility that no democratic government takes lightly. I note that previous speakers have spoken very eloquently on that point and on the responsibilities that flow from the deployment of our armed forces.

There are, however, weighty arguments to be put against this superficially attractive proposition. The most important of these are as follows. Firstly, there is the incompat­ibility of this proposal with the Westminster system of government, most particularly in a bicameral parliament. Secondly, there is the difficulty of expecting a legislature to make such a decision when it does not and cannot have the full range of information it would need to make such a decision. Thirdly, there is the fact that our defence forces need clear and unambiguous terms of deployment and the flexibility to respond to situations in which they find themselves.

I now address each of these points in turn. It has always been a principle of the Westminster system that the parliament legislates, but the executive governs. The executive was once the Crown; today it is the cabinet acting in the name of the Crown. The parliament decides what the law should be, but it is the executive which then puts those laws into effect. When there is a dispute about the meaning of the law, it is resolved by an independent judiciary. This is the separation of powers, and it is, of course, one of the foundations of our highly successful system of government. The Constitution gives this parliament the power to legislate in the area of defence, and the parliament has done so by creating the Australian Defence Force and the defence department to administer it. The Minister for Defence is the executive head of that department, and he recommends to cabinet how, when and where the ADF should be deployed. That is an executive decision, not a legislative one. The role of the legislature is to legislate, not to manage the implementation of the laws that it passes. Thus, the parliament creates immigration law but it does not decide which individuals will get visas. The parliament creates social security laws but it does not determine individual pension cases. The same principle should apply in the field of defence. It is open to this parliament to pass laws which regulate the manner in which the ADF should be deployed. It is not the proper function of parliament to make executive decisions about such deployments.

This does not, of course, mean that the parliament is powerless in these important matters. Under the Westminster system, the government holds office only so long as it has the confidence of the lower house of the parliament. If the parliament wishes to overturn an executive decision, whether in defence or, indeed, anywhere else, it can do so by censuring the minister or perhaps by passing a vote of no confidence in the government.

The violation of Westminster principles that this bill represents is made worse by the fact that it stipulates that the deployment of forces outside Australia will require the support of both houses. I am sorry as a senator to have to say this, but it is a cardinal Westminster principle that the government relies on the support of the lower house of parliament. The government does not need the confidence of the Senate—although, let me say, we prefer to have it. We have a bicameral legislature in which the two chambers are frequently controlled by different parties. There have only been nine years since the 1950s in which a government has had the majority in the Senate. This bill, if passed, would make the ability of a government to make executive decisions in the field of defence dependent on the support of a house which is deliberately designed by the system of proportional representation not to have a government majority. This is unsound in constitutional theory and would be completely unworkable in practice.

I turn now to the issue of the ability of the parliament to exercise the kind of quasi-executive role which this bill would create for it. One of the advantages of a system of executive government is that it enables decisions to be made by people who are in full possession of the information which is necessary for those decisions to be made properly and which cannot, by its nature, be public. This principle operates in all fields of government, whether it is taxation, immi­gration or pensions. This parliament passes taxation legislation, but parliament does not, and should not, have before it the details of every individual taxpayer so that it can decide how much tax they should pay. That matter is decided by officials who have a professional obligation to preserve the confidentiality of the information they have access to. If that is true of taxation, then it is immeasurably true of defence.

This bill would create a situation in which one of two highly undesirable things would have to happen: either the parliament would have to make a decision about approving or not approving deployment outside Australia, without possessing the intelligence information upon which such a decision should be based; or, alternatively, the parliament would have to require that all such intelligence information be provided to it so it could then make an informed decision. That would, of course, run the grave risk of exposing our defence personnel in fact to increased danger, and it would also immediately end all forms of intelligence cooperation between Australia and its allies. As anybody who has worked in the defence space comprehends, that would of itself be a grave blow to Australia's security.

It has been suggested that parliament could hold sessions in camera in which confidential information could be given, as was done by the Churchill government in the United Kingdom during World War II. In fact, the purpose of those meetings was to share confidential political information, not details of operational matters. Mighty parlia­mentarian though he was, Winston Churchill would never have dreamed of allowing the House of Commons—let alone, I might say, the House of Lords—to usurp the role of the executive government to make operational decisions about where, when and why British forces should be deployed. I do not think there can be any doubt that any confidential information given to a closed session of the parliament might soon be leaked, negating the entire purpose of the exercise.

Let me now address the most serious problem that this bill would create. The bill says:

… members of the Defence Force may not serve beyond the territorial limits of Australia except in accordance with a resolution, which is in effect and agreed to by each House of the Parliament, authorising the service.

This bill does create various exemptions from this proscription, such as for peace­keeping and humanitarian purposes, but these do not substantially detract from the basic purpose of the bill, which is to prohibit the deployment of the ADF outside Australia for operational purposes without the author­isation of both houses of parliament. The Senate may note that the bill does not specify that parliamentary approval is needed only when the purpose of deploying forces outside Australia is to take part in a war. It applies to all deployments of the ADF, unless they meet one of the exempt categories specified in the bill.

It is regrettable, to put it mildly, that, after more than 15 years of intermittent debate of this issue in the House and in the Senate, the proponents of this bill still have not addressed the basic problem that it creates—that is, it would make the effective and flexible operation of our defence forces impossible. The bill would require specific parliamentary approval every time the Navy proposed sending a ship or a submarine outside Australia's territorial waters. It would require parliamentary approval every time the Royal Australian Air Force proposed to fly an aircraft to New Zealand, Papua New Guinea, East Timor or the Solomon Islands, or to fly a patrol over the Southern Ocean or the Tasman Sea. It would require the disclosure of each and every operational activity of the ADF outside our own territory.

The proponents of the bill will no doubt argue that these missions will usually come within one or another of the exemptions provided for in the bill. But this ignores the fact that the exact purpose of many ADF operations cannot and should not be disclosed, so it would not be possible to tell the parliament whether any given deploy­ment would or would not come within those exemptions. The ADF should not be required to disclose this information. This bill would put the ADF in a position of having to choose between disclosing operational secrets and misleading the parlia­ment. Of course the ADF would remain true to its duty and its situation would become impossible.

The bill provides an exemption for deployments conducted for non-warlike purposes, but this fails to address one of the basic facts of military life: it is not possible to know in advance what our forces may encounter when they are conducting operations. A mission to Somalia, for example, may be exempted from the provisions of this bill because its intention is humanitarian assistance, but what happens if such a mission were to come under attack, which is not only perfectly possible but has been witnessed in countries with no effective government? Will the ADF be required to seek resolutions of both of houses of parliament before its members can defend themselves?

This bill would be not only very harmful to the operations of our defence forces but also quite unnecessary. The fact is that Australian forces are never operationally deployed to wars or warlike situations without vigorous parliamentary debate. That was true of both world wars, of Korea, Malaya, Vietnam, the Gulf War, East Timor, the Iraq war and, of course, Afghanistan. Every one of these deployments has been debated, sometimes at great length and with great passion and even with great bitterness, in our democratic parliament, and that is exactly as it should be. The government of the day has had to justify its course of action before the parliament, and every three years it has to justify its actions before the people. Governments are also subject to relentless scrutiny in the media, and that again is as it should be.

Let me also take this moment to reflect on the fact that the Department of Defence and the ADF are organisations which are solidly committed to the principle of transparency in government. We of course have a budget process, where the structures of the various components and force elements inside the ADF are matters of public knowledge—they are not secret. We have an estimates process in which Defence can be thoroughly scrutinised by this parliament—and, of course, it is. In a whole range of ways information about Australian defence forces is publicly available.

The government and previous govern­ments have long asserted the virtue of the fact that, through that transparency and that clarity, we provide ourselves and our neighbours with a clear sense of what the tasks of the Australian defence forces are. The white paper clearly sets out the strategic context in which this government and this country are building its ADF capabilities. This, unfortunately, does stand in contrast to other nations which continue to shroud their militaries and their strategic thinking behind veils of secrecy. But that is not something that has been a tradition in Australia. This transparency is a virtue of this government, previous governments, the ADF and the Department of Defence—and it will long continue to be so.

For all these reasons, the government remains resolutely opposed to this bill, as all governments have been since this proposal was first raised in 1985. I commend the government's position to this Senate and I trust that the Senate will once more reject this bill.

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

In my contribution to this debate on the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2010 I want to some extent to go over ground already covered but address a range of issues that are relevant to the discussion. I want to discuss the submis­sions, the history of the debate, the history of the bill, what I believe to be the real purpose behind the bill—as opposed to its ostensible purpose—leading to a discuss­ion on the role of the executive and why I believe that the current practice of the executive making decisions as to the deployment of Australian forces should be retained and then perhaps conclude, if time permits, by making some comments about the role of information and its disclosure and what I believe to be common ground; that is, the necessity for extensive public debate on these matters where we deploy troops or service people overseas into war zones, conflicts, wars or however the area is properly described.

At the outset, let me express some comments that I have not to date put on the public record. When the committee's report was delivered to the Senate, for reasons that I do not recall, the three principal speakers were each limited to four or five minutes in the comments they could make. There may have been some time restrictions, for whatever reason. I had intended to make some comments about the decision of the government or the Department of Defence not to make a submission to the inquiry and, for whatever reason, I failed to do so. I do think it has been a glaring omission in this particular bill inquiry that our government or the Department of Defence—and, arguably, the Attorney-General's Department—deliber­ately chose not to make a submission to the inquiry. I have a memory of approaching both Dr Watt and then Minister Faulkner and requesting them to authorise the department to make a decision. I was assured that a submission would be received but none was forthcoming.

Why is that important? It is important because this has clearly been an issue in this parliament since at least 1985. There have been successive attempts by minority parties to change the current practice of executive decision making and shift it to one or both houses of parliament as to the deployment of troops overseas—if I can characterise it in that way—and a range of present and past senators have put their thoughts on the record. Indeed, I much appreciate the contribution just put by Senator Feeney, the Parliamentary Secretary for Defence, because his contribution, to a significant extent, did address some of the core issues as to why my party and the opposition party—although I cannot speak for them—are resolute in our opposition to changing the practice of the executive making decisions. He outlined those details, the reasoning, the history and the thought processes involved more than adequately.

It would have been most useful if the department or the government had chosen to put that material on the public record in the bill inquiry organised by Senator Ludlum, because they are important reasons, they are germane to discussion and they heavily influence the deliberations of a whole range of people in this parliament and outside the debate. There is no reason ever for govern­ments or departments not to put their reasoning in an informed way on the public record as to how decisions are being made—and it is regrettable that that did not occur.

I must also, I suppose, be somewhat critical because, if this issue is as important or as critical as Senator Ludlum, on behalf of the Greens, suggests that it is, I would have anticipated that there would have been a groundswell of community interest, support or agitation around the issue apart from that expressed by political representatives of the Greens in debates in this place. In fact, it is my observation that there has been minimal interest and minimal commentary, apart from the aficionados who pay attention to this debate, for many years. I draw the conclusion that that is because, in the wider Australian community, there is, by and large, satisfaction with the processes that success­ive governments have adopted for the commitment and deployment of armed personnel into war zones and to participate in warlike activity in war zones.

Indeed, because the government chose to not make a submission to the inquiry when we were going through that process, I paid more than ordinary attention to the 30-odd submissions that had been put in by interested groups and individuals. Normally I glance at them, make myself familiar with the main arguments and put them away for use in public inquiries. This time I paid a lot of attention. I was surprised, because of the 31 submissions only 12 or 13 supported the notion of prior parliamentary approval, but those 12 or 13 submissions were one-page form letters and merely asserted the need to have parliamentary approval as opposed to executive determination.

Assertions are fine and they reflect the belief of a group or an individual, but you need more than mere assertion on a point to carry the point. One would have thought that, after four or five lengthy debates in this place and a huge amount of material on the public record, the groups and individuals who assert the need to change a system that has been around for hundreds and hundreds of years would have more than mere assertion as the justification for change. Unfortunately, that was not the case. Indeed, six of the 31 submissions supported the bill by reference only to its content, eight proposed alternative forms or amendments of substance, and four or five opposed the bill. Having made those comments, only some six, eight or 10 submissions of the 30-odd addressed the content of the bill and the technical deficiencies, shortcomings or amendments thereto.

If one tracks back on the debate that occurred today and previous debates—at least four or five, going back to 1985, and I think the first was by an Australian Democrat senator—governments and oppo­sitions constantly identified technical deficiencies in the bill. That was put in written reports and it was requested that the submitters attend to those deficiencies. What that indicates is that the government of the day or the opposition of the day show a mature approach to the argument, give it consideration, say that there are a heap of issues and problems, and ask: what is the solution to them? And we get no response. That led me again to the conclusion that those who position themselves for change in this debate are perhaps not as serious as they might think they are, because they choose to not do the hard work of addressing either technical deficiencies in drafting or strategic and technical considerations that are necessary considerations as part of the process of deploying troops overseas.

As has been identified by other speakers in this debate today, and it is certainly attested to in discussion in the committee report, there have been many years of consideration of this matter. A host of passing senators in the Australian Democrats—Senators Mason, McLean, Chipp and Bartlett—used, in substance, the same bill every time they reintroduced the bill. Indeed, the bill being put forward by Senator Ludlam today is in substance—at its heart, at its core—identical, or that close to identical that it does not matter, to previous bills advanced by parties that have been subsumed by the Australian Greens.

Let us now turn to what I surmise to be the core purpose of those advancing this bill—today by Senator Ludlam and the Greens, and in past debates, by and large, by various representatives of the Australian Democrats. It is always paraded as being about issues of participation and democ­racy—that the parliament is the supreme decision-making body in this country and it should participate and decide if we are going to send troops to war. As Senator Feeney said, it is a somewhat attractive proposition. But I think the real purpose behind this bill, and the real purpose behind its incarnation in previous forms, is to simply prevent the Australian government from having the ability to send armed services overseas under any circumstance. I say that upon consider­ation and reflection. I come to that conclusion simply because those who put forward the issue for change never, ever move beyond the point of assertion in their debate.

What is the current position? It is as Senator Feeney outlined. If we are going to send people overseas, it is a decision of the executive, the Prime Minister and cabinet, and that is an inherited position from the Crown. If the government of the day gets it wrong, or gets it bad, or messes up, or is incorrect in its reasoning, it can pay a terrible price. Every three years or every six years, if our commitment to troops overseas is proving to be fallible, or unwarranted, or unnecessary, or too costly, or not satisfying original purpose, we, particularly in the major parties, face the ultimate test. If it is a matter of such consideration, the people will just say: 'You're wrong. You're no longer justified being in government. We will give the other mob a go.' That is the first point.

The second point I want to address in more detail goes to the heart of the debate. It goes to the issue of security, confidentiality and military matters. It goes to issues of deployment, issues of numbers, issues of capability, issues of disposition and issues of purpose. They are all considered in the context of a strategic and military decision making. Why, in the final analysis, do a lot of members of the government and a lot of members of the opposition say, 'The proposition of the Australian Greens is simply a bridge too far'? Why do we say that this decision making should be retained to the executive and not transferred to 220-odd elected members in both houses of parliament? We say it for this reason: consideration by the executive is necessarily secret and confidential. It goes to the deployment of assets of a capital nature and personnel. It involves them going into war zones where they are likely to be injured or killed. We say that that process of decision making is properly kept secret and properly retained only in the hands of the executive and properly only known to those who need to know it.

Whilst we as members of parliament might think that we are so important that we should be consulted or that we should know what is going on in Afghanistan or Iraq in terms of operations, that is a sop to our vanity—that is all. Because if we do wish to know what is going on—and as Senator Ludlam well knows, because he is a member of the Senate foreign affairs committee, and I know because I have been on that committee for many years—regularly, we and the joint committee receive private briefings from senior officers on a whole range of operational matters, on capital acquisition matters that go to commercial-in-confidence, on security matters and on a whole range of other things. Indeed, regularly—three times a year in estimates—senators will ask questions of CDF, Chief of Navy, Chief of Army, whoever is there, and occasionally we are told: 'Listen, Senator, that goes to matters that are not properly in the public domain. If you want to know, we are more than happy to provide a private briefing and take you through what you want to find out.' And our committee and other committees of this parliament from time to time take up the offer and we are informed on a range of matters occurring in the military or the security field that are not appropriate to be on the public record.

So it is not a matter of this body in the executive having only and sole knowledge. Representatives of the broader population can avail themselves of that knowledge, but it is done in a different way, in a private way, because those whom we seek to inflict harm upon or who seek to inflict harm upon us do not need to know how we are going to do it or when we are going to do it or why we are going to do it.

In that context, I must say that there is precious little in the Australian defence forces that is not publicly known and not on the public record. Indeed, in more latter years, I have come to the view that perhaps there is too exhaustive inquiry into a lot of matters that are going on in Defence—too many committees covering the same game. We regularly in this place have ministers of the Crown making public statements on deployments in Iraq or Afghanistan or East Timor or the Solomons. We go through the estimates process three times a year, particularly the May budget. It is no mean feat to sit there for two days, 12 hours each day, on defence and have officers on the other side of the table literally facing hundreds or thousands of questions as to all aspects of their work. There are a large number of committees that regularly inquire into a whole range of aspects that go to capability, capability acquisition, disposition of forces and procurement matters. There are particular intelligence and security committees that in this parliament are charged with the oversight of agencies that engage in that sort of activity.

Members of parliament, particularly in the last five, six or seven years, have been more than diligent in examining and questioning the senior officers of the Australian military forces in the most public of forums, where every word is written down and is often examined by 10 or 12 senators or members of parliament at once. That is a very effective regime—a very, very effective routine—of obtaining information.

The conclusion, again, that I draw is that a lot of information that perhaps in past decades may not have been readily available or had been covered up or not disclosed for a range of reasons is now regularly put out in the public domain. Indeed, I regularly read the opinion polls and, not surprisingly, I think a majority of people in this country are opposed to our involvement in Afghanistan. I do not really quarrel with that conclusion. I think probably a majority of the population does not favour the government's decision to put troops there, keep troops there and keep them there for a number of years into the future. But because this government and previous governments—ministers of the Crown, regularly—and those who are engaged in this national security debate regularly make speeches on these sorts of topics, a lot of information is out there, and the wider community is not concerned that it is being misled, being misinformed, being underinformed or does not know what is going on. They know why we are in Afghanistan. They know why we are fighting there. They know the cost. They know the number of deaths. They know the justification. There is considerable public information. So the process of parliamentary review, parliamentary oversight, parlia­mentary knowledge is absolutely essential; Senator Ludlam is correct on that point, but— (Time expired)

Ursula Stephens (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I rise to follow Senator Bishop's contribution to this debate on the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2010 [No 2]. I was certainly very interested to hear Senator Bishop's contribution because, as a very longstanding member of the Senate and the Joint Standing Committee on Foreign Affairs, Defence and Trade, he is probably one of the most knowledgeable people in this parliament now that we have lost some of our long-serving senators from that committee, and he does understand exactly how often and how scrupulously this issue has been investigated and debated over the years.

The fundamental issue we all have to understand here is that since 1901 neither the Australian Constitution nor defence legislation has required governments to actually gain parliamentary approval for the decision to deploy forces overseas or, in the rare cases that it has occurred, as Senator Feeney and Senator Bishop both explained, to actually declare war. There have been attempts—as Senator Bishop, who remem­bers the time in 1985, said—by the Australian Democrats and, more recently, by the Australian Greens to remove that exclusive power of government to commit Australia to war. What a serious issue this is for all of us to consider today.

When, in February last year, the Senate Foreign Affairs, Defence and Trade Legislation Committee reported on the then Australian Greens bill, the committee con­cluded that the bill could not be considered to be a credible piece of legislation and recommended that the bill not proceed. The committee also stated:

The committee is not in any way against the involvement of both Houses of Parliament in open and public debates about the deployment of Australian service personnel to warlike operations or potential hostilities. It agrees with the views of most submitters that the Australian people, through their elected representatives, have a right to be informed and heard on these important matters.

Senator Bishop took the time and the trouble to go through the 31 submissions to the inquiry and reflected on how many of those supporting the legislation were actually a form letter going to certain parts of the bill—most were not. This goes to the very point that the Australian people expect the government of the day to be competent and confident in having to make a call to deploy our forces overseas. They expect that of us; that is what we as a government have a responsibility to do. That decision is an extraordinary decision to be made and it is one that is the prerogative and the responsibility of the executive government.

The purpose of the bill that we are debating is to ensure that, as far as is constitutionally and practically possible, Australian Defence Force personnel are not sent overseas to engage in warlike actions without the approval of both houses of parliament. Mr Bandt, who introduced this bill in the House of Representatives, actually acknowledges that the bill is a revised version of the bill first introduced into the Senate in 1985, so we are revisiting this as if it is Groundhog Day. I do not think it does this place much service that we continue to go over old ground. As Senator Bishop said, the inquiries have demonstrated where the shortcomings in the legislation are, yet the proponents who keep putting it up have not actually addressed the deficiencies of those bills.

The challenge for us is really to understand what the purpose of the bill is. As Senator Bishop said, what is the real intent, what are the principles that are really under debate here, what is this bill all about and what might its real impacts be, and what are the consequences of actually enacting this kind of legislation? Let us start to think about those issues. First of all, I do not think it would be unfair to say that the bill has been drafted from the view of people who have never actually been involved in executive government and, quite frankly, are not ever likely to be. Understanding the issues, the way in which the cabinet processes work and the way in which the executive government works would really reflect how important it is that this power resides within.

As Senator Bishop said, and as people have said over and over in the debate, the real test of the decisions of the executive government is the election every three years. If the Australian people are not happy with the way the government of the day deals with supports and makes decisions around the deployment and resourcing of our defence forces—the most critical function of the defence forces of our nation—then they can take their voice to the ballot box and make their concerns known.

We have seen, from my memory, that this has not been an issue. Perhaps the first Iraq war was an issue that was very much in the public debate around an election campaign, but since that time there has been bipartisan support for the decisions we have made about protecting our sovereignty and our­selves and also about being the international citizens that we profess to be and taking our share of the load as members of a global peacekeeping force and global military action. We do not commit our troops, our defence personnel, lightly, and we certainly understand the seriousness of actually engag­ing in warlike activities. The importance of all of that comes to the second point that Senator Bishop just made, which I thought was very important and goes to the fact that the executive makes a decision based on very important confidential and national security issues—briefings and information that should not be in the public domain. There is sometimes a case where we think that, just because we want to know, we should know. We sometimes confuse the issue of the right to know and the need to know, and I think the responsibility that lies heavily and very responsibly with the executive government is the fact that there is intelligence advice given to governments on a confidential basis that can only be told to the government of the day for very important reasons. This is a principle that we have upheld since 1901, and I do not see that there is any reason why we would need to change this now. Certainly the proponents of this legislation have not made the case to do so.

While I have some time I would like to go to some of the changes in the impacts. This comes from the explanatory memorandum of this bill. I will go through some of the amendments here. The first ones that I really want to focus on are subsections (7), (8) and (9), providing for situations in which the parliament is not meeting when a so-called proclamation by the Governor-General is made. The bill wants the Governor-General to make a proclamation and the advice is provided by the Prime Minister stating the reasons for a deployment, its legal authority, its geographical extent, its expected duration and the number and members of the forces to be involved. That information is requested in this legislation to be put into the public domain.

Let us think about what the implications of all of that are, for starters. That kind of information is not necessarily available to the public now—and for very sensible reasons. For the security of our defence forces themselves, some of that information certainly should not be in the public domain. So let us think. First of all we have the parliament being consulted at the earliest possible time about the emergency and the deployment of forces overseas. We also have the proposal that, if the parliament is not in session—that is, it has been adjourned indefinitely or for more than two days—the Presiding Officer of the House is to summon the House to meet within two days after the proclamation is made.

We finish today for five weeks. In those five weeks I know every member of this parliament has a program of work around our committee responsibilities, overseas travel et cetera. There are amazing commitments that people try to lock into these periods when we are away from the parliament. This is proposing that at short notice—within two days—the Presiding Officer would recon­vene the parliament. Besides the expense and inconvenience, it is a nonsense that that should be the case.

If the parliament is prorogued—subsection (8) of this bill:

In that circumstance, a proclamation is to cease to have effect seven days after it is made.

What this does is provide for situations of a parliament having been prorogued before a proclamation has been made or having been prorogued within seven days of a proclamation being made. In both cases the proclamation ceases after seven days and no similar proclamation can be made until the parliament meets again. Think about the outcome of the last federal election, when in fact the final results were not known for several weeks after the election date. It is an unworkable piece of legislation that we have before us. It really makes no sense at all. The effect of subsection (8) is that, if the government deploys forces overseas in an emergency while the parliament is prorogued and the government intends that the deployment continue beyond seven days, the government will be compelled to advise the Governor-General to summon the parliament to meet within that period to seek parlia­mentary approval for the deployment. So you can see that this is quite an illogical approach to the very serious issue of deploying our troops.

We cannot be seen to be at the will of the parliament to call people into account for serious warlike activities. Perhaps we should take the example of RAMSI and the deployment of our defence personnel to the RAMSI forces and the incidents that have happened in the Pacific. You think, 'How does that fit practically into what is being suggested in this legislation?' Senator Feeney talked about deployment of defence personnel to emergency situations. We have had amazing accolades for the work that our fantastic personnel have done in Japan after the recent earthquake and tsunami—how they mobilised from New Zealand and were instantly able to respond and provide expertise in those circumstances.

I read another part of this, which is about creating hostilities. How do we understand the circumstances in a very volatile situation where something escalates because of the breakdown of civil society? In those circumstances, something that is seen to be peacekeeping can suddenly escalate into something far worse. We saw some of that in East Timor, where our troops had made an amazing impact in peacekeeping and reducing hostilities. Looking at how we have deployed our defence personnel across the Pacific, I think that we really see where the potential is for that blurring of the lines to come into play. So the committee was right in recommending that this was not a workable piece of legislation. It is not a workable piece of legislation now. It actually creates extraordinary pressures on our defence forces and it creates extraordinary pressures on our individual members. But, of course, what it does is deny the executive government of the day their responsibility and their need to be the ones that take responsibility for deploying our defence personnel. This legislation places significant limits on the government that are a nonsense.

Debate interrupted.