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Wednesday, 13 February 2008
Page: 246


Senator BARTLETT (3:44 PM) —I move:

That this bill be now read a second time.

I table the explanatory memorandum and seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

The Defence Amendment (Parliamentary Approval of Overseas Service) Bill seeks to amend section 50C of the Defence Act 1903. The purpose of this Bill is to ensure that Australia’s Defence Force personnel are not sent overseas to engage in war-like actions without the approval of both Houses of Parliament.

The Explanatory Memorandum accompanying this Bill clearly outlines improvements to the Defence Act 1903 that I am seeking to make in order to make the decision to deploy our Defence Force personnel more transparent and open to scrutiny.

This Bill does not seek to interfere with normal, non-warlike overseas service nor with the expeditious deployment of our Defence Force personnel in cases warranting emergency action.

In 1981, the Australian Democrats first proposed the need for parliamentary consent to commit our troops to overseas conflict and sought change through proposing amendments to the Defence Act 1903. Since 1985 regular attempts to achieve the same result have been made through Private Senators’ Bills - the earliest ones initiated by Senator Colin Mason and party founder Senator Don Chipp.

While these Bills have changed in substance over the decades, the core aim remains the same; that Parliament and, through this, the people should and must give consent for our troops to be committed to overseas conflicts.

Australia’s rapid deployment of troops to Iraq in 2003 brought into stark relief the lack of accountability and process in committing the Australian Defence Force (ADF) to war-like service.

I will always remember the shock felt by the Australian public at the rapid deployment of our troops, the lack of due process and the lack of honesty in the information and justification provided to the public. The Howard Government was the first government in our history to go to war without the support of both houses of parliament.

Many people were stunned at discovering that the Prime Minister can commit the ADF to conflict zones without the support of the United Nations, the Australian Parliament or the people. Under the Defence Act 1903 the Prime Minister can exercise this power under the guise of a Cabinet decision as part of the Government’s prerogative powers.

Prerogative powers include such things as the ability to declare war, negotiate treaties or make peace. The Defence Act 1903 now regulates the exercise of many prerogative powers relating to defence, including the ability to go to war, effectively removing the role of command in chief from the constitutional head of state, the Governor-General.

In the past, the Opposition and the Government have provided ample but feeble excuses as to why Australia cannot accept a Bill enshrining parliamentary approval for overseas service in law. Excuses have ranged from it being ‘impractical’, restrictive, or a threat to security. None of these criticisms could be further from the truth.

The Parliamentary Library kindly provided me with a briefing note on countries and their approaches to approving overseas military operations. In conjunction with the 2006 Geneva Centre for the Democratic Control of Armed Force Occasional Paper, Parliamentary Control of Military Missions: Accounting for Pluralism by Wolfgang Wagner, wider parliamentary approval for military missions from peace-keeping to war is far from uncommon and certainly not impractical.

Countries with ‘high’ levels of parliamentary control include Denmark, Finland, Germany, Ireland, Slovakia, Spain, Sweden, Switzerland, Turkey and South Korea. In these countries troop deployment is set down in constitutional or legislative provisions.

Countries falling under the ‘medium’ level of parliamentary control, having the need to have some form of parliamentary approval or consultation, except in certain circumstances include, Austria, the Czech Republic, Italy, Japan, Luxembourg, the Netherlands and Norway.

Australia falls into countries with a ‘low’ level of parliamentary control. We are stable mates with the US, the UK, Canada, New Zealand, Belgium and Poland to name a few. ‘Low’ level countries require no parliamentary involvement in the decision making process. While it has been a convention in Australia to consult parliament on troop deployment, we saw in this convention being flouted in the most cynical way possible in 2003.

I do not seek to make the process for parliamentary consultation obstructionist, cumbersome, unwieldy or potentially threatening to the security of our troops or our nation. The Defence Amendment (Parliamentary Approval for Overseas Service) Bill) 2008 does, however, aim to improve accountability and transparency and shift Australia from a nation of ‘low’ level of parliamentary control.

It is also instructive for those Senators who have previously dismissed the concept of parliamentary oversight and debate on deployment issues out of hand, that in 2007 Britain’s then newly appointed Prime Minister, Mr Gordon Brown, saw fit to open up debate on the question of the Government’s unchecked powers to go to war.

As part of a review of The Governance of Britain, the Brown Labour government opened up the war powers prerogative for public discussion via the War Powers and Treaties: Limiting Executive powers consultation paper. Public consultation closed in mid-January, and a response to the process is pending.

British Labour has not shut its mind to reviewing or limiting government powers in relation to the Executive war powers prerogative. It has outlined a range of possible options for doing so; from detailed resolutions of the House of Commons to legislation. I look forward to the British Labour Government’s response to the paper and subsequent action democratising the war powers prerogative in the United Kingdom. I sincerely hope that this will be a catalyst for Australia to follow suit.

This revised war powers Bill offers an opportunity to do this. It will ensure that future decisions made by Australian governments committing out troops to war-like action will be able to be considered as thoroughly as possible by the people’s representatives, and the information surrounding any such deployment will be open to scrutiny. This does not mean that information that may threaten an operation or the security of troops on the ground will be presented for discussion, but the reasons why we are entering an action and the legal authority on which this is based will be debated.

Federal Labor is very keen on having greater involvement on bodies with which Australia is working, such as NATO which co-ordinates and directs activities in Afghanistan. It is a logical step, therefore, to entrust the Parliament with some degree of input into the decision making process when sending our troops into war-like action. Parliament will finally have the definitive right, if this Bill becomes law, to find out if we are sending our troops into conflict zones in which Australia has no control or say in what our troops are doing. Having trust in one’s allies is essential but that trust must not be blind.

The decision to deploy the ADF overseas to engage in war-like action definitely is not one that is taken lightly, nor should it be. Such decisions impact on our society for years and in some cases generations after the event - war and its after effects do not occur in a vacuum. As such, this is a decision that should not be taken without, whenever practicable, consultation with the people’s representatives.

I conclude as I did when commending the Democrats’ 2003 Defence Amendment (Parliamentary Approval for Australian Involvement in Overseas Conflicts) Bill to the Senate by re-stating the following:

There should be no doubt of the high human and economic costs of war. It is arguably the most serious decision that is made on behalf of a nation. That decision should be made only with the support of the Parliament.

I commend the Bill to the Senate.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.