Senator BROWN (10:25 AM) —I move:

This is an important motion. I have had very many people ask me in recent weeks and months how it could be that the Prime Minister could deploy 2,000 Australian Defence Force personnel to Iraq without the permission and vote of the parliament. People in Australia have noted that the President of the United States was required to get a vote through both houses of the congress, which happened late last year, and that while the Prime Minister of the United Kingdom, Tony Blair, was not required to do so, he did so, and put the vote to the parliament in the UK. But that did not happen in Australia. In this country, the Prime Minister used the silence of the Constitution on the matter to take unto himself the authority to deploy troops to the theatre of war—or potential war—even before the United Nations had made a determination on the matter.

This draws into very serious question the point of having a parliament at all as far as the Prime Minister is concerned. I have heard some correspondents—some opinion makers who should know better—say that the Prime Minister was elected to do such things. It needs to be pointed out that in this country the Prime Minister is not elected. Parliamentarians are elected, and within the party which wins the majority in the House of Representatives there is then a vote as to who will be the Prime Minister. The Prime Minister is not mentioned in the Constitution and nor is the executive as such. But in this situation we have rule by the executive—and that really means by the Prime Minister's office—and not by the parliament. This is a very important matter. The Constitution says that the defence forces of this country can be used to defend the Commonwealth and/or one of the states if they need to be defended and, of course, we would all agree with that. It is silent on the matter of Australian Defence Force personnel being used for the invasion of another country which does not present an ostensible threat, immediate or direct, to us.

From that comes the question of the legality of what the Prime Minister has done on this occasion. Whilst there is a vigorous debate on this matter, there is no doubt that the preponderance of international legal opinion and domestic legal opinion is that it is unlawful for Australia to be involved in the war in Iraq. This is an illegal war. I refer to an article in Monday's Australian by a barrister, Chris Maxwell, and Professor Hilary Charlesworth, who is the Director of the Centre of International and Public Law at the Australian National University in Canberra. It begins with these words:

And later the authors say:

which have been referred to by the Prime Minister—

I refer to an article in the current Guardian and the Age on Wednesday, yesterday, by George Monbiot called, `One rule for them.' It is referring to the controversy about the request of the United States to ensure the Geneva convention is used by the Iraqi authorities in dealing with prisoners of war. Mr Monbiot comments:

the Secretary of Defense—

Mr Monbiot goes on to say:

And so on. These are matters of huge importance to this nation. We are involved at the behest of Prime Minister Howard. There has been no reference to the people, no reference to a vote, no weight of reference to this parliament. The Prime Minister has usurped the process of this democracy to involve us in an illegal war and we need, as the Senate, to be able to review that process. We need not only to review the legality—or indeed the illegality—of the Prime Minister's actions but to put in place, if we can, measures which will restore the authority of this parliament and make it clear that this parliament represents the people, not the Prime Minister. There should be a mechanism in this parliament, as there is in the American parliament, to ensure that we do not deploy troops to hostilities overseas without the authority of the elected representatives following a proper debate about what that means for this nation and where this nation's interest lies and what the consequences of such action should be.

Finally, I point to the opinion of Mr Brian Walters SC from Melbourne, whose opinion is under the heading, `The decision of the Australian government to join in an attack on Iraq.' The gravity of the situation is in his opening remarks. He says:

Further on, Mr Walters says:

that is the advice Mr Howard used to defend his position—

Note this:

Concluding his opinion, Mr Walters has this to say:

Mr Walters concludes:

These are serious and grave matters of international law. If we in Western democracies do not uphold international law, who will? There is an argument that international law needs to move on and be developed; that then is our responsibility. But to break international law—and arguably the most important law for the keeping of international order, the United Nations Charter itself— should not be countenanced. Yet, on the face of it, that is what has happened under the authority not of this parliament but of this Prime Minister.

The question of whether Australia's involvement is legal or illegal needs investigation. It is hugely important. It is going to be debated around the world not just for years but for decades to come. There are possibly very serious ramifications. It is not good enough to say, `The United States is a hyperpower, therefore it can do what it wants. Therefore, might is right.' With the United States and Great Britain, we constitute some six per cent of the world's population. The other 94 per cent is going to levy great influence on what happens as a result of this war, which, according to the preponderance of news reports, through sheer firepower, will end the regime in Iraq. But the legality of that process is under serious question.

The Senate committee system has evolved to ensure the interests of this nation are served by getting the best advice possible from the community and from the greatest expertise possible on matters of importance to this nation. What could be more important than whether or not we are legally involved in this war in Iraq and whether or not what is happening in Iraq is legal. The question is: ought a Prime Minister of this country, in an office which is not elected, be able to usurp the role of this parliament in determining the great issues of the day? Are we not drifting away from democracy towards dictatorship itself when the executive becomes the arbiter of whether and under what circumstances this country goes to war and parliament is left with nothing to do but to talk about it?

The Senate has a very heavy responsibility here. This move by the Greens to refer this matter to the proper and relevant committee is enormously important. We do not know how long this war will proceed. What we do know is that the ramifications of it are going to echo for many years to come. It is proper, it is impelling and it is absolutely important that we determine the legalities of this matter as soon as possible and that we also look at re-empowering the parliament, reasserting the constitutional implication that this parliament should make these decisions.

I for one am not prepared to allow that to be stolen through the night, stolen through this moment in time by Prime Minister Howard. This is a democracy. The Senate should uphold above all the democratic powers and rights of this parliament and not leave them for the executive to steal from this parliament. Whatever senators may think, these are matters of enormous importance both to the moment and to the values that we judge this parliament as having in a democracy. They are crucial, they are critical, and there must be a reassessment. The Senate is the right place to do it. I commend this motion and hope it will draw support from the government and the opposition, as well as the other parties and the Independents in this place.