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Thursday, 10 February 2005
Page: 118


Senator KIRK (4:48 PM) —I rise to speak on the bill that Senator Bartlett has presented to the parliament, the Defence Amendment (Parliamentary approval for Australian involvement in overseas conflicts) Bill 2003 [2004]. As Senator Hogg indicated, the opposition opposes this bill and does so for a number of reasons. Many of those reasons have been outlined by Senator Hogg. I was listening to his speech and I noted with interest the number of definitional ambiguities that he has identified in the bill which make it most unclear as to how the bill would operate in practice. In addition, there is the simple impracticability of the bill insofar as it will require gaining approval of the parliament at very short notice. In some circumstances this could very much disadvantage the position of our troops and could also disadvantage us strategically.

This afternoon I want to focus on a number of legal issues surrounding this bill—how it may operate and other such things. I think Senator Allison mentioned in her speech that within the Australian Constitution it is surprising to see no mention made of who has the legal authority to declare war and/or to make the decision to deploy our troops to an international conflict. The reason there is no mention made in the Australian Constitution is that back in 1901, around the time that our Constitution was being drafted, Australia was in a very different position internationally and in relation to its foreign policy. At the end of the 19th century, when the Constitution was being framed, we were still very much part of the British Empire. Inasmuch as we had a foreign policy it was really that of the British, so the founding fathers would not even have contemplated the inclusion in our Constitution of any sort of reference to who or what in Australia had the authority to make a decision to declare war and/or to deploy troops to a conflict. So it is quite clearly the case that there is no express reference in the Australian Constitution to this matter. But legal scholars and others have said, and it is no doubt the case, that the authority that gives a legal basis to the deployment of troops or the declaration of war arises from the executive power of the Commonwealth. This is set out in section 61 of the Constitution, and Senator Hogg talked about that in some detail.

It is quite clear that in the past the declaration of war has been considered a prerogative power of the Crown and it is now recognised that the prerogative powers of the Crown are given expression in section 61 of the Constitution. It is there that the legal basis or authority for the declaration of war and deployment of troops resides. In our system of government this essentially means that, because it is an executive power, at the end of the day this power resides with the Prime Minister and with his or her cabinet. This is what we saw in the case of the Iraq war. There was a decision made by the executive to become involved in the Iraq conflict and it was only subsequent to this decision being made that the Prime Minister sought endorsement of that within the parliament. As we are all aware, a motion was passed both in the House of Representatives and then later here in the Senate endorsing that decision that had already been made by the Prime Minister. So it is quite clear, under our existing system of government, that parliamentary approval is not necessary for the deployment of troops—and this is what this bill goes to, what this bill seeks to change and what we are discussing here today.

Before I move on to the way that this legislation would work, I will just refer to what a couple of other speakers have already made reference to, and that is how similar situations are dealt with under other constitutions and in other jurisdictions. Senator Hogg referred at length to what happens in European countries. As he pointed out, in some countries there is parliamentary approval involved, not necessarily from both houses but possibly from one house of the parliament. France is a good example. There is constitutional entrenchment of this in article 35 of the French Constitution. Of course other European countries have provisions as well. I think a couple of speakers, including Senator Allison, have made reference to the United States. She mentioned, and it is quite right, that this matter is dealt with by article I of the US Constitution. It vests the power to declare war in congress and not the President. So you have article I that invests power in the congress, requiring congressional authority for the declaration of war, but then article II provides that the President is the commander-in-chief. As a consequence of this provision, the President has been able to exercise his power without the approval of congress to engage in wars in countries such as Vietnam. This in turn has given rise to some debate in the United States, which I think Senator Allison referred to. So on the one hand you have this constitutional entrenchment but then on the other hand this second provision in effect allows the President, as commander-in-chief, to embark upon a war on behalf of the United States. That is the situation in the United States.

Our system is a great deal more similar to the one in the United Kingdom. As we know, our system of government was very much based on their system of responsible government. In terms of the war in Iraq, in the United Kingdom there was no constitutional requirement for parliamentary approval of a decision to go to war, but the political reality in that country very much demanded that the Prime Minister take this matter before the House of Commons. Again, this is a matter of responsible government. If the Prime Minister had not enjoyed the support of a majority of the members of the House of Commons, he would have run the risk of a motion of no confidence. We know that, if that had occurred, as a matter of constitutional convention it could have led to the resignation of the Prime Minister. That is the situation in two similar democracies—the United States and the United Kingdom. I will now return to our situation.

As I mentioned at the outset, it is the case that there is no constitutional provision in Australia. If we decided that we wanted to introduce a system of parliamentary approval, it could be done in a couple of different ways. The first possibility would be to effect a constitutional amendment—if that was the course we decided to take. But we know about constitutional referendums in this country and the chances of success—they are unlikely to gain the required majorities of the people and the states in order to effect this change—so that is something that realistically would have to be ruled out. The other option is the one that Senator Bartlett is attempting to achieve by introducing some legislative change under section 51(vi) of the Constitution, which is why we are here today talking about this. Under this legislative head of power it is quite possible for the Commonwealth to enact legislation that would perhaps introduce into our system of government some form of parliamentary approval before troops were deployed or a declaration of war was made.

That brings me to this piece of legislation. Whereas I can understand the motivations for the introduction of this legislation, I think that, as Senator Hogg detailed quite comprehensively in his speech just a moment ago, there are a number of ambiguities with it as it is presented at the moment. There are a number of definitional ambiguities which really make it most unclear how this legislation would operate. Even if it is accepted at face value and we take it for what it is intended to mean, it is quite apparent that the number of difficulties that would arise in terms of practicalities to bring about the result that is sought really are too many to contemplate, especially in the context in which these decisions would be made—that is, in the context of going to war or embarking upon some kind of international conflict.

It also goes back to the underlying issue, which is that these types of decisions are decisions for the executive. It has always been the case under our system of government that only the executive has the power to make these decisions. But it is more than just a matter of power; it is also a matter of the institutional ability and the information required to make these very important decisions such as the declaration of war or the deployment of troops. As we know from the way that our government works, it is certainly the case that this kind of information is only within the province of the executive. So it is only the executive who have the necessary information to make an informed decision about whether this is the way to go.

It is also only the executive who have full and proper knowledge of military matters and strategic decisions. It is the executive who have the one-on-one contact with our allies. 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.

I have also mentioned the question of the time frame. Quite often, the decision to deploy troops or go to war has to be made very quickly. We have had some recent examples of this, such as the deployment of troops to the Solomon Islands following the shooting of the AFP Protective Service officer Adam Dunning. The troops were deployed in order to prevent any escalation in violence. So that is an example of where a decision had to be made quickly. If this legislation had been in force, parliament would have been required to be recalled before troops could be despatched to the Solomon Islands. That would have been most difficult and inconvenient. Similarly, when the troops were deployed to Aceh, following the Boxing Day tsunami, the provision of this relief assistance would also have required the approval of the parliament. In circumstances such as the tsunami, where there had already been an incredibly large loss of life, had there been this further delay waiting for parliamentary approval then—who knows?—there could well have been a further loss of life.

These practical concerns surrounding this bill suggest that it is not the way to go. There have been some suggestions made by various legal scholars that, whereas this bill does not achieve the right balance between the necessity to deploy troops and the perceived need for some kind of parliamentary role, instead of requiring that both houses of parliament vote on such a matter it could perhaps go to a vote in the House of Representatives without involving the Senate. But, as has been pointed out, that is pointless because the executive government has a majority in the House of Representatives. If it were to go to the House of Representatives there would be very little debate in any event—a vote would be taken and we would all know the result. The issues that were highlighted before about delay in the system and the difficulties of any kind of parliamentary involvement would also still be there.

Professor George Williams, in an article that he wrote towards the end of 2003 in the Australian Financial Review, suggested a compromise. His idea was that perhaps this decision could be made by a joint sitting of the two houses of parliament and therefore all members would be able to make their contribution. But at the end of the day, the government would have the numbers if and when it was put to a vote and the decision of the executive would ultimately be endorsed. Professor Williams said:

This would involve an appropriate measure of symbolism and deliberation. It would not, however, remove the capacity of the government in most cases to determine the course for the nation, for which it will ultimately have to answer at the ballot box.

Whereas I can see that there is some merit in this compromise, as Professor Williams puts it, the context in which these decisions are being made indicates that they are not the kinds of matters that should involve parliamentary participation before the decision is made. Of course once the decision is made, there is nothing to stop a parliamentary debate—in fact I think it ought to occur. That happened after the decision was made to deploy troops to Iraq. It gives every opportunity to every member of the House of Representatives and the Senate to make their contribution and, if necessary, indicate their disagreement with or objection to the decision made by the executive government. I for one expressed such sentiments in the speeches that I made following the decision by the government to deploy troops to Iraq. So I still maintain that it is better to go with the position we currently have. It is part of our tradition and history and it is not something that I think should be tampered with lightly. It is for those reasons that I believe and the Labor opposition have indicated that we are unable to support this bill.