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Thursday, 10 February 2005
Page: 106


Senator ALLISON (Leader of the Australian Democrats) (3:53 PM) —I rise to speak today on the Defence Amendment (Parliamentary approval for Australian involvement in overseas conflicts) Bill 2003 [2004]. This Australian Democrats private senator’s bill, introduced jointly by my colleagues Senator Bartlett and Senator Stott Despoja almost two years ago, goes to the heart of democracy in placing the responsibility for the deployment of Australian serving men and women with the parliament. At the core of democracy is the notion that those who govern are accountable in some way to the consent of the people. If a democracy is a ‘government of the people, by the people and for the people’, the bottom line is that democratic accountability is indispensable.

Many Australians have found it very hard to believe that an important issue like sending our troops overseas to engage in war against another sovereign nation is actually excluded from our democratic decision-making processes. That a Prime Minister can commit Australian men and women to war without parliamentary consent goes against the basic principles that parliaments should be the providers of democratic legitimacy. It is contrary to democracy that Australia does not have the constitutional or legal powers to hold the executive of government accountable for such decisions. Parliamentary oversight in relation to war must be strengthened. That deficit must be addressed, and that is what this bill does.

Why is consent for war a good thing? In hindsight, the present war against Iraq provides many answers to that. Being accountable to the will of the people through the parliament will restrain democratic leaders and help prevent them from initiating foolhardy and risky wars. Committing the lives of citizens to an overseas conflict is no small decision. It requires that leaders be particularly cautious both when starting wars and in joining coalitions with others. They must be able to persuade others by the strength of the argument and by the evidence.

Political institutions such as Australia’s democratically elected parliament are the essence of democracy. It follows that in a democracy its leaders must be at some level answerable to the people. Instead, we have a Prime Minister and cabinet whose decisions in relation to war are immune from public consent, who often keep the real reasons from public scrutiny and who bypass the checks and balances. Instead of democracy we have a government which has initiated violent actions against another sovereign state, continues to have the ability to engage in doomed foreign policy ventures and violates the human rights of countries in ways that cause immense loss of life and suffering.

Without parliamentary consent for war, we have a situation of empowerment of the individual at the expense of the collective. Many other countries do not allow their leaders to make decisions about war. The Netherlands and Germany are just two examples of countries that recognise that the armed forces are not a power tool of the executive branch and require the approval of the legislative branch before any declaration of war can be made. There are more: Hungary, where approval is required by a majority of two-thirds in parliament; and Slovakia, where the President can declare war only with the recommendation of the government. Even countries with presidential systems have provided an additional constitutional check on the power of the President with regard to war—no doubt based on, and likely to be due to, a history of authoritarian executive rule. These places include Honduras, Mexico, Nicaragua, Panama, Paraguay, El Salvador, Ecuador and Guatemala.

Countries where consent for war is not needed are presently contemplating legislation to redress that need. India is in that group. Even in the United States, President George Bush is not as free to take his country to war as our Prime Minister is. The United States Constitution vests the power to declare war in congress and not in the President. The President’s power was used without the approval of congress to engage in undeclared wars in countries such as Vietnam and this resulted in ongoing debate over which branch of government possesses the war powers of that nation. In the United States a bill was introduced in 2003 by representatives from Oregon and Texas to repeal the Iraq Use of Force Resolution.

This bill before us is, therefore, nothing out of the blue. Australia’s practice is outdated. Parliament must have a formalised role in Australia’s decision to go to war. Australia’s Constitution is silent about who can declare war for Australia, the circumstances in which we might go to war or where we can use military force as part of a unilateral or pre-emptive strike. But Australia’s Constitution was framed 100 years ago for governments operating according to the conventions and practices of Westminster, when Australia was seemingly firmly bound to the foreign policies of the mother country, the United Kingdom.

We should have moved on from the British influence on our policy by now. The UK government should not be held up as an example. In that country the Prime Minister, with the Ministry of Defence, can do as he or she likes because of crown prerogative. This arbitrary power once belonged to the monarch but through the decades has been transferred to the political leader, the Prime Minister. Crown prerogative is a system which spares the Crown and its representatives the tiresome constraints which affect the rest of us—like having to get parliamentary endorsement. It provides for arbitrary, secretive and the least accountable exercise of power. It is certainly not a system to be held up as a good example. It is an undemocratic privilege which enables prime ministers to order the country to war. Our own Prime Minister has similarly alarming powers.

Australia has obligations under international law. We are a party to the Charter of the United Nations. That charter, in article 103, has the status of a higher law in the international legal order. It means that our obligations under the charter must prevail over any other international obligations. The charter was established on two main principles—firstly, to bring about the resolution of international disputes by peaceful means, and, secondly, to recognise that the use of force would only be justified as a last resort in the interests of the international community and not individual states. By going to war against Iraq, Australia has breached its international obligations under the charter. The Prime Minister is directly responsible for this breach. The breach of international law has ramifications for Australia, in terms of both our security and our economy, and poses huge concerns for our Asian neighbours.

To make it worse, the Prime Minister will not rule out further breaches through engaging in pre-emptive strikes against other nations, such as Iran. The latest comments on Iran by the United States Secretary of State, Condoleezza Rice, should be of concern to all Australians who do not want this nation to again take part in pre-emptive strikes and get involved in a yet another drawn-out and destructive conflict. This is a prime example of why it is not appropriate for the decision to use force by our military to be left solely in the hands of the Prime Minister and cabinet.

This bill is essential to strengthen parliamentary control over the executive branch of government in the exercise of its prerogative powers. It places the responsibility for decisions to send Australian troops overseas with both houses of federal parliament, subject to exception in an emergency. We must remember that the Howard government was the first in Australia’s history to go to war without the consent of the parliament. It is a power that has been abused and that must not be allowed to be abused again.

I am hopeful that there are members of both major parties who will support this bill. I hope they will consider a conscience vote on the issue. In the ALP, Mr Laurie Brereton supported it in 2003 in a speech in the House of Representatives. Professor George Williams, from the Faculty of Law at the University of New South Wales, has written extensively on this issue. He commented:

While Parliament will not always be the right body to determine such an issue, especially where an immediate decision is required based upon confidential security information, there may be a role for Parliament as a decision maker where there are serious doubts about the justification for unilateral pre-emptive action.

I think we can say that is what happened in the case of Iraq—in fact, that describes exactly the Iraqi situation. There were serious doubts about the justification for unilateral pre-emptive action. The situation with Iran is unfolding in a way that is disturbing—like what occurred prior to the Iraq war. Iran says it has no plans for nuclear weapons. Just yesterday the Iranian president said in a speech:

We give our guarantee that we will not produce nuclear weapons because we’re against them and do not believe they are a source of power. But we will not give up peaceful nuclear technology ...

US Secretary of State, Condoleezza Rice, says Washington has no deadline for progress in negotiations with Iran over its nuclear plans. Iran has suspended key nuclear works such as uranium enrichment while it negotiates with the European Union, which is offering trade deals and other incentives if Iran permanently scraps potential weapons related nuclear activities. We can only hope that the United States does not choose to again work against the international community on Iran and does not go around the United Nations and international laws and launch a pre-emptive strike over claims that another nation has nuclear weapons or might just develop them in the future. If that does occur, then the Prime Minister should not be able to involve Australia in an unnecessary and illegal war yet again.