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Thursday, 7 July 2011
Page: 4402


Senator STEPHENS (New South Wales) (17:45): I rise to follow Senator Bishop's contribution to this debate on the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2010 [No 2]. I was certainly very interested to hear Senator Bishop's contribution because, as a very longstanding member of the Senate and the Joint Standing Committee on Foreign Affairs, Defence and Trade, he is probably one of the most knowledgeable people in this parliament now that we have lost some of our long-serving senators from that committee, and he does understand exactly how often and how scrupulously this issue has been investigated and debated over the years.

The fundamental issue we all have to understand here is that since 1901 neither the Australian Constitution nor defence legislation has required governments to actually gain parliamentary approval for the decision to deploy forces overseas or, in the rare cases that it has occurred, as Senator Feeney and Senator Bishop both explained, to actually declare war. There have been attempts—as Senator Bishop, who remem­bers the time in 1985, said—by the Australian Democrats and, more recently, by the Australian Greens to remove that exclusive power of government to commit Australia to war. What a serious issue this is for all of us to consider today.

When, in February last year, the Senate Foreign Affairs, Defence and Trade Legislation Committee reported on the then Australian Greens bill, the committee con­cluded that the bill could not be considered to be a credible piece of legislation and recommended that the bill not proceed. The committee also stated:

The committee is not in any way against the involvement of both Houses of Parliament in open and public debates about the deployment of Australian service personnel to warlike operations or potential hostilities. It agrees with the views of most submitters that the Australian people, through their elected representatives, have a right to be informed and heard on these important matters.

Senator Bishop took the time and the trouble to go through the 31 submissions to the inquiry and reflected on how many of those supporting the legislation were actually a form letter going to certain parts of the bill—most were not. This goes to the very point that the Australian people expect the government of the day to be competent and confident in having to make a call to deploy our forces overseas. They expect that of us; that is what we as a government have a responsibility to do. That decision is an extraordinary decision to be made and it is one that is the prerogative and the responsibility of the executive government.

The purpose of the bill that we are debating is to ensure that, as far as is constitutionally and practically possible, Australian Defence Force personnel are not sent overseas to engage in warlike actions without the approval of both houses of parliament. Mr Bandt, who introduced this bill in the House of Representatives, actually acknowledges that the bill is a revised version of the bill first introduced into the Senate in 1985, so we are revisiting this as if it is Groundhog Day. I do not think it does this place much service that we continue to go over old ground. As Senator Bishop said, the inquiries have demonstrated where the shortcomings in the legislation are, yet the proponents who keep putting it up have not actually addressed the deficiencies of those bills.

The challenge for us is really to understand what the purpose of the bill is. As Senator Bishop said, what is the real intent, what are the principles that are really under debate here, what is this bill all about and what might its real impacts be, and what are the consequences of actually enacting this kind of legislation? Let us start to think about those issues. First of all, I do not think it would be unfair to say that the bill has been drafted from the view of people who have never actually been involved in executive government and, quite frankly, are not ever likely to be. Understanding the issues, the way in which the cabinet processes work and the way in which the executive government works would really reflect how important it is that this power resides within.

As Senator Bishop said, and as people have said over and over in the debate, the real test of the decisions of the executive government is the election every three years. If the Australian people are not happy with the way the government of the day deals with supports and makes decisions around the deployment and resourcing of our defence forces—the most critical function of the defence forces of our nation—then they can take their voice to the ballot box and make their concerns known.

We have seen, from my memory, that this has not been an issue. Perhaps the first Iraq war was an issue that was very much in the public debate around an election campaign, but since that time there has been bipartisan support for the decisions we have made about protecting our sovereignty and our­selves and also about being the international citizens that we profess to be and taking our share of the load as members of a global peacekeeping force and global military action. We do not commit our troops, our defence personnel, lightly, and we certainly understand the seriousness of actually engag­ing in warlike activities. The importance of all of that comes to the second point that Senator Bishop just made, which I thought was very important and goes to the fact that the executive makes a decision based on very important confidential and national security issues—briefings and information that should not be in the public domain. There is sometimes a case where we think that, just because we want to know, we should know. We sometimes confuse the issue of the right to know and the need to know, and I think the responsibility that lies heavily and very responsibly with the executive government is the fact that there is intelligence advice given to governments on a confidential basis that can only be told to the government of the day for very important reasons. This is a principle that we have upheld since 1901, and I do not see that there is any reason why we would need to change this now. Certainly the proponents of this legislation have not made the case to do so.

While I have some time I would like to go to some of the changes in the impacts. This comes from the explanatory memorandum of this bill. I will go through some of the amendments here. The first ones that I really want to focus on are subsections (7), (8) and (9), providing for situations in which the parliament is not meeting when a so-called proclamation by the Governor-General is made. The bill wants the Governor-General to make a proclamation and the advice is provided by the Prime Minister stating the reasons for a deployment, its legal authority, its geographical extent, its expected duration and the number and members of the forces to be involved. That information is requested in this legislation to be put into the public domain.

Let us think about what the implications of all of that are, for starters. That kind of information is not necessarily available to the public now—and for very sensible reasons. For the security of our defence forces themselves, some of that information certainly should not be in the public domain. So let us think. First of all we have the parliament being consulted at the earliest possible time about the emergency and the deployment of forces overseas. We also have the proposal that, if the parliament is not in session—that is, it has been adjourned indefinitely or for more than two days—the Presiding Officer of the House is to summon the House to meet within two days after the proclamation is made.

We finish today for five weeks. In those five weeks I know every member of this parliament has a program of work around our committee responsibilities, overseas travel et cetera. There are amazing commitments that people try to lock into these periods when we are away from the parliament. This is proposing that at short notice—within two days—the Presiding Officer would recon­vene the parliament. Besides the expense and inconvenience, it is a nonsense that that should be the case.

If the parliament is prorogued—subsection (8) of this bill:

In that circumstance, a proclamation is to cease to have effect seven days after it is made.

What this does is provide for situations of a parliament having been prorogued before a proclamation has been made or having been prorogued within seven days of a proclamation being made. In both cases the proclamation ceases after seven days and no similar proclamation can be made until the parliament meets again. Think about the outcome of the last federal election, when in fact the final results were not known for several weeks after the election date. It is an unworkable piece of legislation that we have before us. It really makes no sense at all. The effect of subsection (8) is that, if the government deploys forces overseas in an emergency while the parliament is prorogued and the government intends that the deployment continue beyond seven days, the government will be compelled to advise the Governor-General to summon the parliament to meet within that period to seek parlia­mentary approval for the deployment. So you can see that this is quite an illogical approach to the very serious issue of deploying our troops.

We cannot be seen to be at the will of the parliament to call people into account for serious warlike activities. Perhaps we should take the example of RAMSI and the deployment of our defence personnel to the RAMSI forces and the incidents that have happened in the Pacific. You think, 'How does that fit practically into what is being suggested in this legislation?' Senator Feeney talked about deployment of defence personnel to emergency situations. We have had amazing accolades for the work that our fantastic personnel have done in Japan after the recent earthquake and tsunami—how they mobilised from New Zealand and were instantly able to respond and provide expertise in those circumstances.

I read another part of this, which is about creating hostilities. How do we understand the circumstances in a very volatile situation where something escalates because of the breakdown of civil society? In those circumstances, something that is seen to be peacekeeping can suddenly escalate into something far worse. We saw some of that in East Timor, where our troops had made an amazing impact in peacekeeping and reducing hostilities. Looking at how we have deployed our defence personnel across the Pacific, I think that we really see where the potential is for that blurring of the lines to come into play. So the committee was right in recommending that this was not a workable piece of legislation. It is not a workable piece of legislation now. It actually creates extraordinary pressures on our defence forces and it creates extraordinary pressures on our individual members. But, of course, what it does is deny the executive government of the day their responsibility and their need to be the ones that take responsibility for deploying our defence personnel. This legislation places significant limits on the government that are a nonsense.

Debate interrupted.