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Thursday, 10 February 2005
Page: 113

Senator HOGG (4:21 PM) —The opposition oppose the Defence Amendment (Parliamentary approval for Australian involvement in overseas conflicts) Bill 2003 [2004]. We believe that it restricts the option of a government to deploy Australian forces overseas in the defence of Australia at short notice. We believe the substance of the bill—that the engagement or ongoing deployment of our forces be subject to parliamentary approval—is impractical. Our troops are increasingly being used for humanitarian and law enforcement tasks and are being required to respond at short notice. Never was this more evident than just before Christmas, when troops were deployed to the Solomon Islands to prevent the escalation of any potential violence following the shooting of APS officer Adam Dunning. If this bill had been in force at that time, parliament would have been required to be recalled before troops were despatched. We therefore believe that the bill that has been presented by the Democrats is impractical and unable to operate.

I will look at the provisions of the bill as presented by the Democrats to show why that is the case. The current act provides under 50C for the operation of our forces overseas under the heading ‘Territorial limits of service of Army’. It says:

Members of the Army may be required to serve either within or beyond the territorial limits of Australia.

It is not a very extensive statement, but nonetheless it gives a very broad authority to operate in theatres other than Australia, which, of course, is necessary in the defence of this country. But I believe that the proposal put forward by the Democrats is very shy on detail and provides nothing more than a mere point of debate here this afternoon. I am not going to go through all of the document, but subclause (2) of the Democrat proposal to replace the existing clause 50C says:

Subject to subsection (3), members of the Defence Force may not be required to serve beyond the territorial limits of Australia except in accordance with a resolution—

note that word ‘resolution’—

agreed to by each House of the Parliament authorising the service.

When I tried to find out what was meant by ‘a resolution of the parliament’, I was not able to find out anywhere in the second reading speech or any accompanying material what was meant. This makes the mind boggle when one gets down to the strategic reasons for which we become involved in a theatre of war or where violence is occurring overseas.

One would have to ask: what would be in the resolution and what would be the constraints placed on the government that were charged with the defence of this nation by such a resolution? Would it go to issues such as the rules of engagement? I know through my various attempts to pursue issues at estimates with the Minister for Defence, Senator Hill, that the government—whether one necessarily likes what they do on all occasions or not—are very meticulous in the rules of engagement. The rules of engagement are most important. If they are left at the beck and call of a parliament which might not be fully informed or have at its disposal all the information, then our forces may well be adversely affected by a resolution of the parliament as to their engagement. Would such a resolution include the strategy to be involved in such an engagement? Would it have time limits? What time limits would there be? What other conditions might apply? This is not evident.

The subsection talks about the resolution being agreed to by each house. I am sure that this was put by the Democrats with the idea that they had the ‘balance of power’ in this Senate. Now that that will change from 1 July, what do they think? Even if it were the case that there was a party in this chamber that had a balance of power, would one necessarily need the vote of both houses? Or would we be faced with the ridiculous situation of it being a matter which would require the double dissolution of this parliament to have ourselves defend ourselves? I do not think that that is the intention at all, but it is not drawing a long bow when one thinks that this is not—

Senator Bartlett interjecting—

Senator HOGG —It is not outlined in the bill, Senator Bartlett. You are quite right. Subclause (4) of the proposed 50C says:

If the parliament is not in session when a proclamation under subsection (3) is made—

this is referring to a proclamation made by the Governor-General under the proposed 50C—

it shall be summoned to meet within 2 days after the making of the proclamation.

That in itself is impractical. That is when parliament is not in session. It implies that everyone is close at hand and able to be summoned to participate in the debate within two days. Meanwhile, very strategic issues are passing us by, and that might not be in our interest. There are no grounds for the delay under such circumstances. Those are just a couple of very pointed things that stand out from the proposed 50C put forward by the Democrats.

I looked further to try and find some explanation for what might be happening, so I looked to a briefing paper which had the name of Senator Bartlett on it. It is a very small briefing paper. It reads:

The purpose of this Bill is to place the responsibility for the decision to send Australian troops overseas with both Houses of Federal Parliament ...

I do not know if the Democrats are talking about a declaration of war. Are they talking about war? Are they talking about overseas conflicts? Precisely what are they talking about? One will find out, when I go into some of the definitions later on, what this entails. They go on:

... subject to exceptions covering the movement of personnel in the normal course of their peacetime activities ...

That statement is not elaborated on anywhere. What are peacetime activities? It really begs the question in this day and age. Last but not least it says:

... and the need to take swift action in an emergency.

One does not necessarily know what ‘emergency’ means in the minds of the Democrats or others, but it certainly may mean different things to them than to the opposition or to the government of the day. It went on to say:

It is based on the principle that the Executive should not be able to involve Australian troops in an overseas conflict.

I have heard those words repeated again today by Senator Allison, and I see they are in Senator Bartlett’s second reading speech. What do the Democrats mean by ‘an overseas conflict’? Is an overseas conflict peacekeeping? It is quite possible that, in an overseas peacekeeping operation, there is conflict going on. And there are different terms, different rules of engagement, where we are involved in peacekeeping as opposed to where we may be involved in peace enforcement. The rules of engagement for peace enforcement may be quite different.

That came to the fore in our involvement in East Timor. Our forces there were certainly not, in the first instance, in peacekeeping mode. They were certainly there for peace enforcement and the rules of engagement, as I understood them when outlined at Senate estimates, were quite different from those that applied to our forces who later played a purely peacekeeping role. There have been numerous instances where our forces have been in areas overseas where there has been conflict—recently in the Solomon Islands and also, of course, in Bougainville. Whilst this might sound warm and heart rending in terms of what the Democrats are putting forward, it has some very practical implications for the engagement of our forces overseas. The last sentence that I want to focus on in the briefing paper from Senator Bartlett says, of the matter being determined by parliaments, that this ‘already applies in many other democracies’. That was reiterated here today by Senator Allison. I heard mentioned the Netherlands, the GDR, Hungary and Slovakia. But I am going to look at some other places where this is not the case.

We have before us a bill which, in my view, is fundamentally flawed to start off with. Whilst it might represent the view of a number of sympathisers of the Democrats, it does not necessarily lead to a proper process for government when they have to react to situations. I would have thought that, if the Democrats were to bring something before us that was more soundly thought out, we would be in a better position to argue the toss as to what might happen or should happen under the terms of any legislation that they propose. But I do not think they have given that to us today.

I asked the Parliamentary Library for some information on the operation of the Constitution and the Defence Act 1903. That has been alluded to by some; and, given that I have about eight minutes left, I will quickly skip through the advice that the library has given me. The library said that there are three constitutional provisions worth mentioning in relation to defence matters. They are: section 61, the executive power of the Commonwealth; section 51(vi), which enables parliament to legislate for the defence of the Commonwealth; and section 68, which makes the Governor-General the commander-in-chief of the defence forces. The briefing note from the library goes on to point these facts out, and I will incorporate them for those people who are interested in this debate. The note states:

Section 61 refers to the Governor-General as the person who exercises the executive power of the Commonwealth but two things are worth mentioning here. First is the doctrine of responsible government.

I think that is terribly important indeed. It goes on:

Second is the convention that in all but a few instances (what are called the reserve powers) any actions taken by the Governor-General are taken on the advice of the Government of the Day.

That is how our democracy and our democratic processes have worked. The note continues:

… although the Constitution says that the Governor-General wields the executive power of the Commonwealth, in reality, decisions are made by a member or members of the Executive Government.

Of course, that is no more true than is seen with the influence of the Prime Minister in any executive government. Formal declarations of war have not been made on many occasions in Australia’s past. The expressions used in the Defence Act are ‘time of war’ and ‘war’, and they are both defined in the act. ‘Time of war’ is defined as:

… any time during which a state of war actually exists, and includes the time between the issue of a proclamation of the existence of war or of danger thereof and the issue of a proclamation declaring that the war or danger thereof, declared in the prior proclamation, no longer exists.

‘War’ means:

… any invasion or apprehended invasion of, or attack or apprehended attack on, Australia by an enemy or armed force.

That is important because the word ‘war’ is used in the briefing paper by Senator Bartlett and the words ‘where conflict is taking place’ are used, so we get into some fairly important definitional terms. The Governor-General is the person responsible for the declaration, but the Governor-General is not an independent decision maker for these purposes. He or she acts on the advice of the government. The library did provide me with a number of the proclamations that have been made. There was one in 1939, which is understandable. In 1941 there was a state of war with Finland, Hungary and Romania. Also in 1941 there was a state of war with Japan. In 1942 there was a state of war with Bulgaria. In 1942 there was a state of war with Thailand. In 1952 there was one declaring that war no longer existed.

That is the sum total of declarations. Declarations of war no longer seem to prevail or be the flavour of the day. So when one talks about overseas conflicts one needs to be very careful about what one means by an overseas conflict. One needs to be careful with the word ‘war’. We had a role in East Timor. There was clearly an overseas conflict; there was clearly a war taking place in East Timor between some dissident forces and those people who ultimately achieved their personal freedom. In my view, the same could be said to have been the case in the Solomons. There are other cases as well: Bougainville, Sudan, Rwanda and so on. In that sense, it is very important to see what the definitions actually are.

Turning to what happens in overseas democracies, let us look at Canada. The advice I have from the library tells me:

As a matter of Canadian constitutional law, the situation is clear. The Federal Cabinet can, without parliamentary approval or consultation, commit Canadian forces to action abroad, whether in the form of a specific current operation or possible future contingencies.

It goes on:

As far as the Constitution is concerned, Parliament has little direct role in such matters.

In terms of Europe, the advice examines the position of 13 European countries. Of the countries examined, nine require parliamentary approval before a declaration of war is made, although the issue is more uncertain as regards deployment of troops under international treaties which bind each country. We are in another area once again. In Great Britain the advice says:

The deployment of troops and the issuing of orders to engage in hostilities are matters of Royal Prerogative, exercisable by Ministers. The Government has liberty of action in this field, and Parliament need not give its approval.

In Ireland the position is:

War shall not be declared and the State shall not participate in any war save with the assent of the Dail—

which is the lower house. But I understand that that is not the same in relation to the upper house. In Russia the Constitution appoints the President as supreme commander-in-chief of the armed forces and gives the office power over foreign policy and martial law. The Constitution generally provides for a strong presidency with a limited role for the Duma. The library’s advice also covers South Africa, the United States and so on. So there are varying circumstances. There might be some places where parliamentary approval is required, but not everywhere—not in a majority of countries by any means and not in some of the major nations of the world.

We would say that governments in this country are tested at the polls. If the government of the day are acting irresponsibly and out of step they will be voted out by the people of Australia. They are held accountable by the people of Australia. Given the nature of conflict overseas it is not possible to bring every conflict into this chamber or into the other place for determination.