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Greens win Inquiry into Parliament Approving Troop Deployment [and] Attachments.



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Scott Ludlam Greens win Inquiry into Parliament Approving Troop Deployment Media Release | Spokesperson Scott Ludlam

Thursday 20th August 2009, 3:42pm

in Democracy & Governance Peace & Security Wars

The Greens welcome the decision of the Senate today for an Inquiry into the "War Powers" Bill requiring

Parliamentary approval for deployment of Australian troops into conflict situations.

"In 2003, in the absence of any checks or balances that many other democracies have, John Howard sent

Australian troops to war, without Parliamentary approval and against overwhelming public opposition," said the

Greens' Attorneys General Spokesperson, Senator Scott Ludlam. "This must never happen again."

"In the wake of the departure of Australian troops from Iraq, the time is ripe for debate about to the "War

Powers" Bill that would ensure parliamentary approval for taking the country to war."

"The Committee can now take evidence and gauge the mood in the community for this long overdue and essential

reform."

"My Private Senator's Bill will subject a decision to go to war to the scrutiny of Parliament as is the case in

Denmark, Finland, Germany, Ireland, Slovakia, South Korea, Spain, Sweden, Switzerland and Turkey. It is

carefully drafted so as not to hinder emergency deployments, disaster relief or peacekeeping operations.

"In these countries troop deployment is set down in constitutional or legislative provisions. This is a subject of

intense debate in the UK - where the Liberal Democrats and the Conservatives are both pressuring the Prime

Minister to take this step."

Senator Ludlam's Private Senator's Bill, the Defence Amendment (Parliamentary Approval of Overseas Service) Bill

2008 [No. 2] was first introduced by Democrat Senator Andrew Bartlett. Senator Ludlam took carriage of the Bill

after Senator Bartlett departed the Senate mid 2008.

The Senate Committee will report on 19 November 2009.

Read Senator Ludlam's speech on the introduction of this Bill

For more information or media enquiries please call Tim Norton on 0418 401 180

Attachment Date Size

Parliamentary Approval of Overseas Service Bill EM.pdf 20/08/09 3:46 pm 66.71 KB

Parliamentary Approval of Overseas Service Bill.pdf 20/08/09 3:47 pm 59.09 KB

Page 1 of 1 Greens win Inquiry into Parliament Approving Troop Deployment | Scott Ludlam

2008

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

THE SENATE

DEFENCE AMENDMENT (PARLIAMENTARY APPROVAL OF OVERSEAS SERVICE) BILL 2008 [No. 2]

EXPLANATORY MEMORANDUM

(Circulated by Senator Ludlam)

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DEFENCE AMENDMENT (PARLIAMENTARY APPROVAL OF OVERSEAS SERVICE) BILL 2008 [No. 2]

EXPLANATORY MEMORANDUM

GENERAL OUTLINE

The purpose of this bill 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 the Parliament.

The bill is a revised version of one first introduced into the Senate in 1985 by Senator Colin Mason (NSW, Australian Democrats). The improvements in this bill consist mainly of more detailed provisions relating to emergency situations which occur when the Parliament is not meeting and the information which is required to be provided to the public and the Parliament.

Section 50C of the Defence Act 1903 provides that members of the army may be required to serve either within or beyond the territorial limits of Australia.

The bill would replace the section with a new section under which service of members of the Defence Force beyond the territorial limits of Australia in warlike actions would require the approval of both Houses of the Parliament.

FINANCIAL IMPACT

The bill would have no direct financial impact.

NOTES ON CLAUSES

Clause 1 - Short title

This clause provides for the short title of the bill.

Clause 2 - Comme ncement

The bill would commence on the day on which it receives the royal assent.

Clause 3 - Schedule

This clause provides for the effect of schedule 1, which is to repeal and substitute section 50C of the Defence Act 1903.

Schedule 1 - Amendme nts of the Defence Act 1903

Items 1 and 2 of the schedule would repeal and substitute section 50C of the Defence Act. It is necessary to create a new subdivision in the act, as the current section 50C

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is in a subdivision which relates only to the army (there are no corresponding provisions relating to the navy or air force).

Proposed ne w section 50C

Subsection (1)

This subsection replicates that part of the existing section 50C whereby members of the Defence Force may serve within the territorial limits of Australia.

Subsection (2)

This subsection provides that, with the exceptions specified in the following subsections, members of the Defence Force may not serve beyond the territorial limits of Australia except in accordance with a current resolution agreed to by each House of the Parliament authorising that service.

Subsection (3)

This subsection provides that, in an emergency requiring the deployment overseas of members of the Defence Force, the Governor-General may make a proclamation authorising that deployment. The Governor-General would, of course, in accordance with constitutional practice, act on the advice of the Prime Minister of the day.

Subsection (4)

This subsection provides that such a proclamation be made only on the written advice of the Prime Minister to the Governor-General explaining the emergency and why it is not expedient to seek the authorising resolution of each House before the deployment takes place.

Subsection (5)

This subsection provides for the publication of any such proclamation and advice within 24 hours, so that the public may be adequately informed of the emergency situation and the reasons for the deployment of forces overseas.

Subsection (6)

This subsection provides that each House of the Parliament is to be supplied, within two days after a proclamation is made, with essential information concerning the emergency and the deployment of the forces. This information is to be in the form of a report containing the Governor-General’s proclamation, the advice provided by the Prime Minister and statements of reasons for the deployment, its legal authority, geographical extent, expected duration and the numbers of members of the forces involved.

Subsections (7), (8) and (9) provide for situations in which the Parliament is not meeting when a proclamation is made. These provisions seek to ensure that, as far as

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is constitutionally and practically possible, the Parliament will be consulted at the earliest possible time about the emergency and the deployment of the forces overseas.

Subsection (7)

This subsection provides for the situation in which the Parliament is in session (ie, the Parliament has not been prorogued under section 5 of the Constitution) but either House is adjourned indefinitely or for more than two days. In that circumstance, the Presiding Officer of that House is to summon the House to meet within two days after the proclamation is made. The subsection refers to the Parliamentary Presiding Officers Act 1965, which specifies who is to exercise the statutory powers of the President of the Senate and the Speaker of the House of Representatives when those officers are unavailable or their offices are vacant.

Subsection (8)

This subsection provides for the situation in which the Parliament is not in session (ie, the Parliament has been prorogued). In that circumstance, a proclamation is to cease to have effect seven days after it is made. Paragraph (a) provides for the situation of the Parliament having been prorogued before a proclamation is made, while paragraph (b) provides for the situation in which the parliament is prorogued within seven days after a proclamation is made. In both cases the proclamation ceases after seven days (paragraph (c)) and no similar proclamation may be made until the Parliament meets (paragraph (d)).

The effect of this subsection 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.

Subsection (9)

This subsection provides for the situation of a proclamation being made in an emergency situation during a general election, or close to a general election brought about by the expiry of the House of Representatives. When there is no House of Representatives (ie, the House has been dissolved or has expired) there is no opportunity for the Parliament to consider and approve or disapprove of an overseas deployment of forces. In that situation the executive government alone has the power to continue a deployment brought about by an emergency. Under the constitutional and statutory timetable for general elections, there is a maximum period of 140 days when the country is without a complete Parliament during a general election. This subsection seeks to ensure that the Parliament is consulted about such a deployment at the earliest practical time. It does this by providing that a proclamation will cease seven days after the day for the return of the writs for the general election. If the government wishes to continue beyond that limit a deployment which was initiated because of an emergency during the election period, the government will have to advise the Governor-General to summon the Parliament to meet within the seven day period.

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Paragraph (a) provides for the situation in which the House of Representatives has been dissolved or has expired when a proclamation is made, ie, the general election process has begun. Paragraph (b) provides for the situation in which the House of Representatives expires within seven days after a proclamation is made. Normally, a general election begins with a dissolution of the House of Representatives; not since the Parliament of 1907-10 has the House been allowed to expire. If a proclamation were made within seven days of the expiry of the House, there would probably not be adequate opportunity for the Parliament to consider a proclamation, and in that circumstance the proclamation would also cease seven days after the return of the writs.

Subsection (10)

This subsection provides that, when members of the Defence Force are deployed overseas in the circumstances covered by the section, the Minister for Defence must report in writing to each House of the Parliament every two months on the status, legality, scope and anticipated duration of the deployment, on efforts to resolve the circumstances requiring the deployment, and on any reasons why the Parliament should allow the deployment to continue.

Subsection (11)

This subsection provides that the requirement for parliamentary approval of overseas deployment of forces does not apply to normal, non-warlike overseas service, consisting of attachments of Australian service personnel to foreign forces, service in diplomatic or consular missions, on aircraft or ships not involved in hostilities , for educational or training purposes, or for purposes related to the procurement of equipment or stores.

2008

The Parliament of the Commonwealth of Australia

THE SENATE

Presented and read a first time

Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2]

No. , 2008

(Senator Ludlam)

A Bill for an Act to amend the Defence Act 1903 to provide for parliamentary approval of overseas service by members of the Defence Force

i Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2] No. , 2008

Contents 1 Short title ............................................................................................ 1

2 Commencement .................................................................................. 1

3 Schedule(s) ......................................................................................... 1

Schedule 1—Amendme nt of the Defence Act 1903 3

Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2] No. , 2008 1

A Bill for an Act to amend the Defence Act 1903 to 1 provide for parliamentary approval of overseas 2 service by members of the Defence Force 3

The Parliament of Australia enacts: 4

1 Short title 5

This Act may be cited as the Defence Amendment (Parliamentary 6 Approval of Overseas Service) Act 2008. 7

2 Commence ment 8

This Act commences on the day on which it receives the Royal 9 Assent. 10

3 Schedule(s) 11

Each Act that is specified in a Schedule to this Act is amended or 12 repealed as set out in the applicable items in the Schedule 13

Schedule 1 A mendment of the Defence Act 1903

2 Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2] No. , 2008

concerned, and any other item in a Schedule to this Act has effect 1 according to its terms. 2 3

Amend ment of the Defence Act 1903 Schedule 1

Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2] No. , 2008 3

1

Schedule 1—Amendment of the Defence Act 2 1903 3

1 Section 50C 4 Repeal the section. 5

2 After Part III, Division 3 6 Insert: 7

Division 3A—The Service of the Defence Force 8

50C Parliame ntary approval of service of members of Defence Force 9

(1) Members of the Defence Force may serve within the territorial 10 limits of Australia. 11

(2) Subject to this section, members of the Defence Force may not 12 serve beyond the territorial limits of Australia except in accordance 13 with a resolution, which is in effect and agreed to by each House of 14 the Parliament, authorising the service. 15

(3) The Governor-General may by proclamation declare that an 16 emergency exists requiring the service beyond the territorial limits 17 of Australia of members of the Defence Force, and such service 18 may occur in accordance with such proclamation. 19

(4) A proclamation under subsection (3) shall not be made except on 20 the written advice of the Prime Minister to the Governor-General 21 explaining the circumstances of emergency which render it 22 inexpedient to seek a resolution pursuant to subsection (2) before 23

deploying members of the Defence Force beyond the territorial 24 limits of Australia. 25

(5) A proclamation and advice under subsections (3) and (4) shall be 26 published within 24 hours after the proclamation is made. 27

(6) A proclamation under subsection (3) shall be laid before each 28 House of the Parliament within 2 days after it is made, together 29 with a report (with copies for each member and senator) setting 30 out: 31

Schedule 1 A mendment of the Defence Act 1903

4 Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2] No. , 2008

(a) the advice referred to in subsection (4); 1 (b) the reasons for the proposed deployment; 2 (c) the legal authority for the proposed deployment; 3 (d) the expected geographical extent of the proposed 4

deployment; 5 (e) the expected duration of the proposed deployment; and 6 (f) the number of members of the Defence Force proposed to be 7 deployed. 8

(7) If the Parliament is in session when a proclamation under 9 subsection (3) is made, but either House of the Parliament is 10 adjourned for an indefinite period of time or for a period of time 11 which will expire more than 2 days after the making of the 12

proclamation, the Presiding Officer of that House within the 13 meaning of the Parliamentary Presiding Officers Act 1965, or the 14 person who is deemed to be the Presiding Officer of that House for 15 the purpose of that Act, shall summon that House to meet within 2 16

days after the making of the proclamation, in spite of anything 17 contained in the resolution of adjournment of that House. 18

(8) If: 19 (a) the Parliament is not in session when a proclamation under 20 subsection (3) is made; or 21 (b) the Parliament is prorogued within 7 days after the 22

proclamation is made; 23 then: 24 (c) the proclamation shall cease to have effect at the expiration 25 of 7 days after the proclamation is made; and 26

(d) no proclamation the same in substance as that proclamation 27 shall be made until the day on which the Parliament next 28 meets. 29

(9) If: 30 (a) when a proclamation is made under subsection (3) the House 31 of Representatives has been dissolved or has expired and the 32 day appointed for the return of the writs for the general 33

election has not occurred; or 34 (b) the House expires within 7 days after the proclamation is 35 made; 36

Amend ment of the Defence Act 1903 Schedule 1

Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2] No. , 2008 5

the proclamation shall cease to have effect at the expiration of 7 1 days after the day appointed for the return of the writs for the 2 general election. 3

(10) While members of the Defence Force are deployed beyond the 4 territorial limits of Australia under this section, the Minister shall 5 report in writing to each House of the Parliament on the first sitting 6 day of that House after the commencement of each of the months 7

of February, April, June, August, October and December of each 8 year, commencing within 2 months after each deployment, 9 including in the report information on: 10 (a) the status of each such deployment, including its legality, 11

scope and anticipated duration; 12 (b) what efforts have been, are being, or are to be, made, to 13 resolve the circumstances which required such deployment; 14 (c) whether there is any reason why the Parliament should not 15

resolve to terminate such deployment. 16

(11) For the purpose of this section, service beyond the territorial limits 17 of Australia does not include service by members of the Defence 18 Force: 19 (a) pursuant to their temporary attachment as provided by 20

section 116B; or 21 (b) as part of an Australian diplomatic or consular mission; or 22 (c) on an Australian vessel or aircraft not engaged in hostilities 23 or in operations during which hostilities are likely to occur; 24

or 25 (d) for the purpose of their education or training; or 26 (e) for purposes related to the procurement of equipment or 27 stores. 28