Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

I seek leave to move a motion to provide that the Defence Legislation Amendment (Parliamentary Approval of Overseas Service) Bill 2015 be called on immediately and have precedence over all government business until determined.

Leave not granted.

Pursuant to contingent notice, I move:

That so much of the standing orders be suspended as would prevent Senator Di Natale moving a motion to provide that the Defence Legislation Amendment (Parliamentary Approval of Overseas Service) Bill 2015 be called on immediately and have precedence over all government business until determined.

On Friday the Prime Minister of this country backed in an unhinged, dangerous, paranoid President, Donald Trump, into a conflict that could potentially end life on earth as we know it. We learnt earlier this year that, during that infamous phone call, Mr Turnbull said to President Trump: 'You can count me in. I'll be there again and again.' Now we know what he meant. He meant blind support for even the most dangerous and foolhardy of ideas—a military solution to the problem of North Korea. He meant that he would back in a man who has in the last week said that North Korea would face 'fire and fury like the world has never seen' and that military solutions are now fully in place, 'locked and loaded'. Where other sane, rational world leaders urge restraint and call for diplomatic solutions, our Prime Minister is offering uncritical support for Donald Trump's dangerous strategy and in doing so he's making us all less safe, putting a target on each Australian's back and increasing the possibility of the unpredictable Kim Jong-un targeting people right across the world, including Australians.

As we teeter on the precipice of what is potentially the first war started on Twitter, let us debate two things. Firstly, our involvement with the ANZUS treaty and our relationship with the US. It is crystal clear now that Australia must rip up the ANZUS treaty and renegotiate our relationship with the US. This is a relationship that is making us less safe, not more safe. It is a relationship that, indeed, endangers humanity on earth.

We also need to debate who should be in power to send Australian men and women to war. We're one of the few remaining democracies now on earth that can legally deploy defence forces, committing the lives of Australian men and women, into conflict without any debate in this parliament. In Australia we leave that decision to the executive alone. We know that desperate governments do desperate things.

It is deeply worrying that the decision to commit Australia to war could be left to Malcolm Turnbull and his mates. I mean, Prime Minister Turnbull can't even stand up to the homophobic bullies in his own party, let alone to this dangerous strongman. How deeply ironic that we have a government refusing to legislate for marriage equality without resorting to a needless postal poll, yet it can decide to send men and women to war, to put their lives on the line, without so much as even a parliamentary debate.

The Defence Legislation Amendment (Parliamentary Approval of Overseas Service) Bill 2015 has spent decades languishing in plain sight while Liberal and Labor prime ministers alike reserve this power to themselves. They have plunged Australia into a tragic series of overseas expeditionary wars that have nothing to do with the defence of Australia or, indeed, our collective security. It is not often I agree with former Prime Minister Kevin Rudd, but this morning he was spot-on when he said that the last thing Australia should be doing is handing a blank cheque to the US with Donald Trump as their President.

It's not just the Greens, of course, who are urging for this parliament to debate and enact this bill. We have had the former Chief of Army Peter Leahy urging the Prime Minister to consult parliament. The former Secretary of the Department of Defence Paul Barratt for years has been championing the call for war powers reform. There are many eminent Australians who back this. The rhetoric that we hear each morning from the United States, as we listen to the views of this President, may perhaps be deeply disturbing. We now have an opportunity to reconsider our views. I call on this chamber to set some time apart today to debate and pass this bill. (Time expired)

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The government will not be supporting the motion to suspend standing orders. If I may say so, the intemperate speech which we have just heard from Senator Di Natale is perhaps the best example of the reason that decisions of this weight and gravity should be made by the executive government, informed by the military chiefs and the intelligence chiefs, informed by those who advise the National Security Committee of Cabinet, rather than a decision made in the heat of partisanship. That is the way the Westminster parliamentary system has always worked. Decisions to commit a nation to war—the gravest decision that any government can make—have always, according to the Westminster system, been made by the executive government.

That is not to say the issue cannot be debated by the parliament. I sat in the Senate at the time the Howard government decided to commit Australian troops to the second Gulf War. Regardless of what one's views about the commitment of Australian troops to that conflict may be, there was no shortage of parliamentary debate on the issue. In this chamber, we debated the issue for hours and hours upon end. So the question is not whether there should be an opportunity for parliament to consider the matter—parliament already has the opportunity to consider the matter; the question is who the decision-maker should be. It requires very little reflection to appreciate that, in making a decision to commit Australian forces to war and to put Australian lives in peril, considerations have to be borne in mind that are not capable of being aired in the public arena—in particular, intelligence and strategic considerations which, if aired in the public arena, could actually damage and imperil the military action in contemplation. I am speaking at a level of generality. I do not descend into the debate about the current strategic situation concerning North Korea. I say nothing about it.

What Senator Di Natale seeks to do is to challenge a principle which, were he to have his way, would in a militarily perilous situation potentially put Australian lives at risk. The way in which the Australian parliament, like all Westminster parliaments, deals with the matter is the right way: to allow the cabinet—in particular, the National Security Committee of Cabinet, advised with all of the intelligence, strategic information and military appraisal that our defence forces, intelligence agencies and others can place before it—to make that grave decision. No government would make a decision of such a kind lightly. The thought that this would be regarded as anything other than the gravest kind of decision that any government could ever make is fanciful.

Let there be debate in parliament, as there has been during every military conflict, whether it was the second Gulf War, the first Gulf War, the Vietnam War, the Korean War or, no doubt, the Second World War and the First World War. Let there be ample opportunity for parliament to debate the matter. But, please, do not fall for the folly of suggesting that a decision of this gravity could be made in a partisan environment in debate uninformed by the information that it needs to be informed by in a parliamentary chamber.

Katy Gallagher (ACT, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak briefly on the suspension of standing orders this morning. The opposition will not be supporting this suspension this morning. While I would like to acknowledge up-front that the opposition recognises that North Korea's behaviour is the greatest current threat to peace and stability in our region, we do not believe that it is the correct use of the Senate's time to debate a bill of this type. I'll speak more on the substantive issue and the bill Senator Di Natale has raised this morning in a moment but, if the Greens were serious about this issue, they would not be moving a suspension of standing orders this morning without notice.

Last Thursday, for example, the Greens had an hour of the Senate's time, which was specifically allocated to Greens in general business to debate whatever issue or bill they decided warranted the attention of this place, and this issue was not raised. Instead of highlighting this issue, they then chose to bring a bill on for debate that was introduced just one day earlier. I don't believe it's fair to say that they can stand here today and genuinely say, 'This is a matter of importance that has just raised its head over the weekend.' The actions of North Korea have been well known for some time and, most definitely, have been highlighted previous to last week, when the Greens had time to raise this in line with the normal procedure of this chamber.

I'd like to make a few short remarks on the substantive issue relating to the suspension this morning. As I mentioned at the beginning of my remarks, the opposition recognises that North Korea's behaviour is the greatest current threat to peace and stability in our region. Its rapid advancement of ballistic missile and nuclear weapons technology has been increasingly provocative under the current regime and is of great concern to the international community. Like the government, Labor strongly urges all parties to continue down the path of easing tensions and encouraging dialogue. As North Korea's only major ally, China is well-placed to intervene effectively. Labor recognises the efforts China makes through diplomatic and economic means to denuclearise the Korean Peninsula and welcomes its support of recent additional UN Security Council sanctions. Labor urges China to look at what more it could do.

On parliamentary scrutiny, Labor has taken the long-held position—as previously articulated by Senators Faulkner and Wong on many occasions—that, under our system of government, a decision to deploy members of the ADF, whether for combat operations, peacekeeping or disaster relief, should be a decision made by the executive government. We also believe that government should be as open and as transparent as possible through that process and provide to the parliament regular reports on Australia's role. We also believe the process should be accompanied by appropriate parliamentary debate and time for appropriate consideration of all matters. That's Labor's position, and we won't be supporting the suspension of standing orders this morning.

Marise Payne (NSW, Liberal Party, Minister for Defence) Share this | Link to this | Hansard source

It is worth observing for the benefit of the chamber not only that Senator Di Natale is incapable of providing the Senate with the courtesy of notice of a motion of such a serious nature as this but also that the cynical amongst us would be entitled to presume that the only reason that Senator Di Natale and the Australian Greens have moved this resolution here this morning, with no notice, with no courtesy to the other parties in the chamber, is to try and hide their own fundamental, inherent defects as a political party in Australia, which apparently are about to be made clear for all to see by the ABC this evening—an interesting turn of interest for the ABC in and of itself.

The decision to send our service men and women into harm and into harm's way is one of the most serious decisions that a government can take. The government is accountable for such decisions to the Australian people. Due to the dynamics and the sensitivities of national security issues, the decision to commit the Australian Defence Force to overseas contingencies continues to be one that is best made by the executive. This is a vital aspect of our proceedings in the Westminster system, if Australia hopes to successfully defend its interests and protect its people. I wouldn't always agree with Senator Gallagher and those on the other side, but the observations that Senator Gallagher made in relation to this process are also apposite. Our current arrangements ensure that the government is able to respond in the national interest where the deployment of the ADF is required.

The government, as Senator Brandis said, does not support this bill. There have been many draft bills of a similar nature over a number of years, designed for authority to go to war on the parliament dating back to 1985. Given the amount of time that I've been in this chamber and associated with this policy area, I have participated in the consideration of those and the debate of many. I reinforce that defending Australia, its people and its interests is the government's highest priority and most important responsibility. The government's duty of care also to the men and women, the members of the ADF, is paramount, and no decision to go to war to engage in conflict is ever taken lightly.

The government's ability to deploy the ADF has long been regarded as an essential prerogative of the executive exercisable under section 61 of the Constitution. The government needs the ability to act swiftly in responding to threats to our national security based on the best advice available. The existing arrangements allow the government to act decisively and respond flexibly to contingencies when they arise. But, importantly, as the Attorney-General said, this power does not prevent the discussion of the testing of the decisions made by the government on the floor of the parliament, and we have seen repeated examples of that engagement over the years. There are appropriate checks and balances on executive power through the normal business of the parliament.

The bill aims to remove the government's power to respond flexibly and immediately to national security issues. It proposes, for example, that members of the ADF 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 parliament authorising the service.' While the intent behind the bill may, on a very broad consideration, be described as well-meaning, there is underlying fault in its concept and its execution. My view in those previous debates was, and remains, that longstanding Westminster convention allows executive government the discretion to commit forces to operations overseas. The executive branch of government is elected by the people to make those hardest of decisions and is answerable to the people for those decisions.

Nick Xenophon (SA, Nick Xenophon Team) Share this | Link to this | Hansard source

I advise on behalf of my colleagues that we support this motion. It is critical that we debate this issue as a matter of urgency, because the impact on Australia of being involved in a conflict in the Korean Peninsula and beyond, including the possibility of a nuclear conflict, would be profound. It would have the most profound effect on Australia since World War II. We can't sleepwalk into a war. We need to heed the words of former heads of Defence in this country who have expressed caution on the need for a parliamentary debate. But I want to make it clear that we believe that, while the debate is urgent and essential, there is a different approach that should be taken. I'm grateful for the considered work of Professor Clinton Fernandes of the University of New South Wales and others in relation to this. I believe that parliamentary authorisation is workable and can be formulated in a suitably flexible way that takes a variety of contingencies into account, protects the security of classified information and copes with the time-sensitive nature of emergency military deployments.

Flexibility can be preserved by distinguishing between wars of choice and wars of necessity. Wars of necessity refer to military actions taken in self-defence that require the use of rapid and/or covert military force. Such wars may involve deployments beyond the territorial limits of Australia. The executive must have the freedom to act without parliamentary authorisation when it does so in self-defence. This is provided for in article 51 of the UN charter. The executive must also have the freedom to act pre-emptively without parliamentary authorisation when the threat to Australia is instant and overwhelming, leaving no choice or means and no moment for deliberation, as the UN charter reflects. In time-sensitive wars of choice, defined as coalition operations under chapter 7 of the UN charter, with a request for assistance from a legitimately constituted government of a state, the executive must be required to provide parliament with a certification that an instantaneous response is needed. This would notify parliament of the reasons for the deployment, the legal authority, the expected geographical extent, the expected duration and the number of ADF personnel involved. Parliament can then choose to persist with or revoke a deployment post facto. Such a rule would bring Australia up to the same standard as Germany and Norway—both NATO allies, with far more compelling treaty obligations than ANZUS.

In terms of security, given the need to preserve tactical and strategic surprise, no parliamentary approval need occur when military commitments take the form of special forces deployments or a decision to send Australia's submarines to a conflict. A consistent objection over 30 years of legislative proposals is that only the executive has access to or can be trusted with the intelligence information required to decide whether to deploy troops. A solution to this would be to empower the Parliamentary Joint Committee on Intelligence and Security, the PJCIS, or the foreign affairs and defence subcommittees of the Joint Standing Committee on Foreign Affairs, Defence and Trade or the Senate Standing Committees on Foreign Affairs Defence and Trade such that they have access to the relevant intelligence information. Such a move would put us in line with the USA, with the intelligence committees and judiciary committees in the Senate and House of House of Representatives being regularly briefed about all authorised intelligence collection programs and relevant members of congress receiving detailed briefings prior to such reauthorisation.

In addition, the US executive is required to brief select groups of congress men and women on specific types of operations before they take place. Members of the so-called Gang of Four, comprising the chairpersons and the most senior opposition members of the House and Senate intelligence committees, receive briefings on sensitive non-covert intelligence programs, such as highly sensitive intelligence collection programs. The Gang of Eight, comprising the Gang of Four and speakers and opposition leaders of the House and the Senate, receive briefings from the executive on forthcoming covert actions without having the power to approve or veto executive plans. This preserves executive freedom while ensuring a check on executive over-reach. Furthermore, all members of the House and Senate intelligence committees and their key staffers are regularly provided with extended footage of completed operations involving, for example, drone strikes. No such provision exists in Australia. Such a system of oversight would also bring Australia up to the same standard as NATO states such as Norway and Germany. Thus, in contrast to objections that Australia's ANZUS obligations constitute a special case that makes special legislative involvement unworkable, it can be seen that Norway and Germany, which have much more demanding treaty obligations through NATO, are perfectly able to ensure legislative involvement. Unlike Canada or the US, Australian senators are directly elected; thus a joint sitting of parliament would be a possible option. That is why we support this motion.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

Before I call you, Senator Hinch, could I get an attendant to remove what seems to be, in my view, a prop on Senator Macdonald's desk. He may not have meant it as one, but it does have writing on the front. Senator Hinch.

Derryn Hinch (Victoria, Derryn Hinch's Justice Party) Share this | Link to this | Hansard source

Thank you. I will be supporting the motion to suspend standing orders to discuss this important issue, but I endorse the comments of Senators Brandis, Payne and Gallagher that ANZUS is there, ANZUS is important and ANZUS must be respected, and it is for the executive government to make a decision on such an important issue. If North Korea or one of Australia's other neighbours launched any form of attack or threat on Australia, we would not be sitting here arguing that the United States Congress should decide before America comes to our defence and assistance. On this, I agree with the government that it is an issue of such importance as to send troops. It should never be taken lightly, but it's for the executive government to do that. I think that this can be heard, and I think that the Greens are fair to bring it on.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Here is a little bit of short-term history for the minister and Senator Brandis. Last week, it was reported in the paper that Hugh White, one of our country's pre-eminent defence experts, had come out and said that, if there were a conflict in North Korea, Australia would very likely provide military assistance. He talked about F/A-18F Super Hornets, Growlers and submarines. It only took a day for Mr Tony Abbott to be out there goading the Prime Minister by saying we need a missile shield, a missile defence system, in this country. This is the internal politics that's going to get us in trouble. This is why the executive say they need the power, and this is why it's dangerous: because of politics. Who thinks Mr Donald Trump is any different? What's he doing with North Korea on Twitter and social media? He's shoring up his position in his domestic audience. This is about his votes and his power back in America. This is why it's dangerous, and this is why we need a parliamentary debate.

Only recently, this chamber commemorated the Great War. I see Senator Sterle here. I know he's been over to the battlefields of World War I, as I have. I wonder what we've learned in recent weeks when I see the reckless escalation in rhetoric by the US President, our supposed ally. And then I see the reckless escalation of this debate by Mr Tony Abbott and Malcolm Turnbull, saying that we would go to war along with the US if it came to a conflict in North Korea. What have we learned? When I think about World War I, the best explanation I've been given for World War I was by Blackadder, when Baldrick said to him, 'Sir, why are we in this terrible war?' He said, 'Baldrick, because it was too hard just not to have one.' That's exactly what The Economist said this week when they published their story on North Korea: their key concern is it's going to be too hard not to have a conflict. Both sides have escalated this to a point where there's no going back. And the headline on The Economist said 'This could happen', with a picture of a nuclear cloud and our two fearless leaders' heads in the nuclear cloud.

I can tell you from my weekend in quiet Launceston that, for the people I spoke to at the markets and the football game I went to, this is the only thing they wanted to talk to me about. Australians are very worried about this. They expect us in parliament to be having this debate. They want the people that they voted for to represent them to help make these decisions.

We have long fought and campaigned for war powers reform in this country, and there's a whole chorus of voices joining the Greens to make sure that we actually get this. Now is the time to be questioning our ANZUS alliance. If not now, when? With a lunatic running the Western world and a lunatic with his nuclear weapons up in Pyongyang, why are we putting our faith in Donald Trump? That's what the ANZUS alliance does: it relies on us to come to the assistance of the US.

Let me give you the words of Malcolm Fraser, Senator Brandis—through you, Chair. His last book that he wrote before he passed away was on the ANZUS alliance and why we needed to revisit it. Do you know what he said? He said that it's ironic and true that, if Australia were to be invaded or attacked, we would need the US to defend us. But what is ironic about that? It is because of the US that we'll probably be attacked. I'll let you stop and think about that. That's the unassailable logic that we are dealing with here, and it's our job as senators and MPs to debate this on behalf of the Australian people. We're not going to back off on war powers reform.

Senator Brandis, you're absolutely right, as is the defence minister, Minister Payne: there can be no more serious a decision than to send Australians off to harm's way and to war. That is a decision that should be taken away from cabinet, with its toxic internal politics, and put to the Australian people through their representatives who voted for us. We speak to the Australian people—as I did on the weekend and no doubt many other people in here did—we represent them in parliament, not the executive. No executive anywhere is going to want to give up power. But I tell you what: this is an issue that is bigger than politics. This is the most serious we can confront. We need to debate it in here and we need to vote on ANZUS and our foreign deployment. (Time expired)

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

() (): I support the motion moved by Senator Richard Di Natale because I support the fundamental value of our democratic institutions to make decisions that affect us all. Our alliances are important, because they keep us safe. The ANZUS alliance is important to us, because it has kept us safe for years. Like any alliance, it underpins the way we operate in the national security space. Our alliances also lend to the international community consistency and predictability. When our alliances stop keeping us safe and start putting us in harm's way then it is appropriate for us to at least debate that. It is the responsibility of the parliament to look after our troops because, by the time they have come home, the government of the day might be a thing of the past. We, on all sides, need to own the responsibility to properly care for our veterans. The only way to do that— (Time expired)

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

The question is that the motion as moved by Senator Di Natale to suspend standing orders be agreed to.