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Thursday, 10 February 2005
Page: 122


Senator SANDY MACDONALD (5:06 PM) —I understand this minor party legislation, the Defence Amendment (Parliamentary approval for Australian involvement in overseas conflicts) Bill 2003 [2004]; it is just that I do not agree with it. We have had some very erudite contributions from Senator Kirk, Senator Ferguson and also Senator Hogg. It was interesting to hear their arguments, particularly because the opposition do not support this legislation either.

It was interesting to hear what Senator Hogg said about some of the practical problems with the legislation—that you might have to have a double dissolution before you could declare war or go to war. It was also interesting to hear from Senator Kirk, who is a constitutional lawyer. She was able to make some of the more interesting points about the constitutional aspects of this potential change, if it were to be effected. I was also interested in what Senator Nettle said. She too is entitled to her view. It is just that I completely disagree with it. Her opposition to the war in Iraq is so overpowering that it allows her to become an apologist for evil. I think she should contemplate that for a little bit and think about what has happened in Iraq since the coalition of the willing changed the regime.

There are a lot of problems in Iraq and a great need for goodwill in the future, but I think the prospects for Iraq and the region have been much improved by what has happened, particularly with the recent election, where 60 per cent of Iraqis—many of whom had never had the chance to vote before—voted. I understand about 8.5 million Iraqis voted. It was not a case of them voting with their feet; they voted because they had a chance to help steer the course of their nation. It was an opportunity for them that we should be very proud to have played a part in, and we should hope and pray for their future, because it is very important to our security and to the security of their region.

This legislation comprises a degree of opportunism and flies in the face of the principle that governments are elected to govern, are held accountable in a whole range of ways—by the media, by question time and in many other ways; by Senate committees, apart from anything else—and can be and are removed by the Australian electors.

I think that Senator Ferguson made a very good point with respect to this legislation introduced by Senator Bartlett: the Democrats did oppose the war in Iraq, and many Australians were perhaps a little concerned about Australia’s involvement. But at the end of the day they believed that the Australian government, and the Prime Minister, had made the decision in goodwill and for the right reasons. They may not have agreed with every aspect of the decision, but when it came to vote they believed that their security would be much greater with the return of the coalition government. And we saw the Democrat vote plummet. There is a whole range of reasons why the Democrat vote plummeted, but if you lose credibility with the Australian electors—which, unfortunately, they did—then I have to say that their decision to oppose the war in Iraq was one of the reasons that people made up their mind in that way, and I suspect they will do so in the same way with the Greens.

Government decisions are taken by the executive of that government. That is a constitutional reality and it is certainly so in the case of defence issues. This legislation goes to the core aspects of our Constitution and government. I will say a little bit about the present constitutional arrangements for the deployment of Australian Defence Force personnel. The deployment of Australian Defence Force personnel is a matter of discretion for the executive government of Australia, as provided by the powers vested in it by the Commonwealth of Australia Constitution Act 1900, which we know as the Constitution. The control of Australia’s military forces is vested in the executive arm of government rather than in the parliament. Both the judiciary and the parliament in Australia have long recognised that the conduct of defence and national security operations is appropriately the role of the executive government.

I am sure the present Leader of the Opposition would agree with that, as a former defence minister. Certainly, former Prime Minister Hawke and our current Prime Minister, Mr Howard, have said that the decision to deploy Australian troops overseas—young men and women of Australia—is probably the most onerous task and the most sleep-depriving responsibility that they have. I can remember former Prime Minister Hawke saying that, and I have certainly heard the present Prime Minister of Australia say that. It is not a decision he takes lightly; I am sure it is not. Nevertheless, cabinet is responsible to the parliament; therefore the government will ultimately have to answer to the parliament and the people for the decisions made in such circumstances—and, as I say, we do answer and we have answered in respect of the decision to deploy to Iraq. Section 68 of the Constitution states:

The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.

By constitutional convention, however, the Governor-General acts on the advice of government ministers. The government has certain executive powers in relation to defence deriving from section 61, rather than section 68, of the Constitution. Declarations of war and the making of peace are exercises of Commonwealth executive power. Such declarations are not required to be authorised by an act of parliament. The power to deploy Australian military personnel and units is vested in the executive government by virtue of section 61 of the Constitution, which provides:

The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

Parliament has an express power provided by section 51(vi) of the Constitution to legislate in relation to defence matters. Section 51(vi) is about that defence power and reads:

51.           The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

                  …           …         …

(vi)          The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth …

In recent times, the government has drawn on this executive power in concert with other Commonwealth powers under the Constitution as reflected by specific laws to enable the ADF to undertake a range of activities. Examples of these activities are: border protection activities in offshore maritime zones; fisheries protection and enforcement activities in offshore maritime zones; support of civilian authorities, such as with the security aspects relating to the Sydney Olympics in 2000; and the deployment of military forces to areas of operations overseas, particularly East Timor, Afghanistan, Iraq and of course the Solomon Islands. Senator Hogg made the point that so many of these deployments now have a humanitarian aspect and nature. Again, the decisions have to be made quickly and that is why this legislation is so impractical.

The doctrines of responsible government and the separation of powers which underpin Australia’s constitutional system provide a framework within which the parliament, the executive government and the judiciary perform different although not completely discrete functions. It has long been recognised by both parliament and the judiciary that it is the executive government which has a discretion in relation to the deployment of the ADF. As a matter of practice, however, parliament is always kept informed of such decisions. After we made the decision to deploy to Iraq, that decision was agreed to by resolution of both the House of Representatives and the Senate.

No decision is taken lightly, and relevant agencies and ministers are fully involved. Current parliamentary processes always allow for debate on decisions which have been made on the commitment of ADF forces to overseas operations. Ultimately, however, as I said, it is the government’s decision whether to commit Australian forces to operations overseas. The current manner in which the ADF is committed to operations overseas preserves the ability of the Australian government to respond to emerging threats quickly and decisively. The process, which I fully support, has served Australia well in the past and continues to do so. In the current threat environment, maintenance of such flexibility is essential.

The decision with regard to East Timor in November 1999 evolved very quickly. It was right and proper. The government acted in a very expeditious way. I will give another example. With regard to the response to Bali in October 2002, the bomb went off in Bali at around 11 o’clock Australian time on the Sunday night. I remember it because I had just got to Canberra. I turned on the late news and I heard it, which probably would have put it at about half past nine Bali time. The response of the Australian Defence Force was absolutely remarkable. Before dawn on the Monday morning, maybe six or eight hours later, the first C130 medivac aircraft was on its way to Bali. Before close of business—not on the Monday but on the Tuesday—every injured person that had to be removed from Bali to an Australian hospital had been removed. That was a decision taken by the government and responded to magnificently by the Australian defence forces.

I refer also to what occurred just before Christmas, when Adam Dunning, one of our AFP officers, was gunned down in the Solomons. Within 18 hours, a company of troops from Townsville, on Christmas Eve, were on the ground doing the job in the Solomons. That would not have been possible if we had the problems involved in this legislation. They are remarkable responses and they are possible not only because the government has the power to act in the defence of the nation but also because we have very good defence forces.

I will mention the original Gulf War as well because in some cases the specific details of deployments might be classified for operational security reasons, limiting the usefulness of public debate. That may not be a welcome argument for those people who oppose deployments, oppose a particular military action or oppose a particular war for political reasons. The decision to go to the original Gulf War in 1991 was taken by the Hawke Labor government. We supported that decision. Our decision to go to Iraq in the second Gulf War was a decision that some sections of the Labor Party found very hard to accept but they supported it because they believed that, once the decision was made, it was in Australia’s interests to support that decision 100 per cent. We took a decision to go to Afghanistan after September 11 in support of the American desire to cleanse Afghanistan of elements of al-Qaeda and the Taliban, which had made the opportunities to mount the September 11 attack. We are very proud that we were able to assist the Americans in that way.

This bill proposes that in an emergency the Governor-General may require Defence Force personnel to serve outside Australia’s territorial limits, provided that the government obtain parliamentary approval within two days. This proposal would place the Governor-General in an unacceptable position. It runs counter to the fundamental premises of our constitutional system of government. Does the Governor-General act on the advice of the executive government or does he have to take counsel from the opposition, the minor parties and whatever Independents may wish to participate in the decision-making process? It would put him in an extraordinarily difficult position. It would place him in an impossible situation and it would thoroughly politicise the office.

This proposal is a recipe for deadlock and confusion, particularly—and I mention Senator Hogg again in this regard—if the government of the day does not control the Senate, which has been the case in recent times. It is not going to be the case after 1 July but one can never be sure when that may change again. It is impractical and dangerous, and it would result in paralysis at the highest level of government at those times when, interestingly enough, we would possibly be in our greatest danger. The executive branch of government is just that. It has been elected by the people to make the hard decisions. It is answerable to the people for those decisions. As I have said, it is fully accountable—in question time, by the media and, of course, at election time.

As we have seen with the recent conflict in Iraq, many members have adopted the position expressed in this bill based on ideological grounds or acquired prejudices. Only the executive government has full access to the available intelligence and to the full range of advice from the Public Service. In contemporary international affairs, overseas deployments are obviously likely to arise at short notice. Do we now cease to participate in peace operations or humanitarian relief operations at short notice? Do we allow aggression to stand because we cannot act, simply because some members are uncomfortable with the use of the military? That is the point. Some of these people opposite are so anti-military and so anti-involvement that, unfortunately—and I am sorry to have to say this—they become apologists for evil. They must think very carefully about their arguments because that is what happens if you reject commonsense and the practical outcomes regarding people who do use force and need to have force used against them. Governments are elected to govern, and it would be a gross act of irresponsibility to abandon that responsibility.