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Thursday, 7 November 1985
Page: 1781

Senator TATE(8.35) —The core of the Nuclear Weapons Prohibition Bill is that it is a Bill to prohibit the manufacture and introduction of nuclear weapons into Australia. That is what it sets out to do and it is a political objective to which I believe this side of the chamber can give its fullest adherence and there is no sense of embarrassment in saying that. The exertions of our Foreign Minister, Bill Hayden, in bringing about widespread and mutual disarmament are well known. Unfortunately, I have not time graphically to describe the efforts he has made in this regard since we came to office. But the question remains whether this Bill best attempts to bind Australians to observe the desirable objective that is outlined by Senator Chipp in this Bill.

The Bill not only sets an objective to which we can all adhere, but also has a machinery of enforcement and sanctions to ensure that that objective is met. It proceeds by way of injunction, enabling a person who lives nearby an alleged nuclear weapon, or a member of the Federal Parliament, to approach a court to seek an injunction. I will come to the significance of that method of the Bill's enforcement in a moment. I believe that very description of the people whom Senator Chipp would allow to try to enforce the Bill, namely members of this Parliament, shows that this is a highly political area and may not be one where the traditional judicial remedies and approaches to courts are the best solution and the best means of enforcement. Nevertheless, there is an attempt to put a political objective in place by this legislation and we have to address it seriously.

The fact is that Australia in solemn international legal terms has given undertakings to the international community along the lines of the substance of the Bill. One would expect that particularly from an Australian Labor Party government, because our policy is very clear. Our policy says, as has already been mentioned in debate, that we oppose the development and acquisition of nuclear or other weapons of mass destruction, oppose their storage on Australian territory and certainly oppose the development of a nuclear component in our defence forces. So our international obligations are a simple translation into binding international law form of our ALP policies.

I believe Senator Chipp and the Australian Democrats have been a little too clever in simply taking that policy and drafting it almost word for word into this Bill. I believe it is inadequate, as I said to Senator Sanders during this debate, because it refers only to nuclear weapons, whereas it is quite clear that in the international arena, for example, Australia and New Zealand have been extremely vigorous in pressing for the comprehensive test ban treaty negotiations and conferences to get under way. That treaty arrangement would embrace all nuclear explosive devices whether destined for supposedly war-like or peaceful or commercial purposes. In narrowing the range of what is prohibited in this Bill to nuclear weapons, I believe that there is an unfortunate narrowing of the range of nuclear explosive devices with which we should be concerned. It is not enough; it is not exhaustive to speak merely in terms of nuclear weapons. In fact, I believe one of the great achievements of Bill Hayden over the winter recess was to get the Treaty on the Non-Proliferation of Nuclear Weapons conference to endorse a call for a comprehensive test ban to embrace all nuclear explosive devices and to prevent their testing. I believe that if any Bill were introduced into this Parliament by this side of the chamber, it should carry that sentiment into effect and amend this Bill in relation to all nuclear explosive devices.

The interesting thing is that the South Pacific Nuclear Free Zone Treaty which I have not time to go into in detail also takes the same wide scope. The South Pacific Nuclear Free Zone Treaty, as has already been pointed out, has been signed by Australia and will become fully ratified when eight signatories ratify the Treaty. Each party undertakes to prevent in its territory the stationing of any nuclear explosive device. Article 3 says:

Each party undertakes not to manufacture or otherwise acquire, possess or have control over any nuclear explosive device . . . or to seek or receive any assistance in the manufacture or acquisition of any nuclear explosive device.

I understand that Article 6 prohibits the testing of any nuclear explosive device in the territory of a party signatory to the South Pacific Nuclear Free Zone Treaty. I believe that, if a proper Bill were to be introduced into the chamber concerning these matters, it certainly should cover all nuclear explosive devices, not merely nuclear weapons.

There is a further matter which the South Pacific Nuclear Free Zone Treaty opens up. A treaty was signed only on 8 August, in the latter part of the winter recess, after Senator Chipp introduced his Bill into this chamber in May. I believe it could be the case that his Bill could become absorbed within the framework of enforcement which is now provided for and in respect of which we have an international legal obligation under the South Pacific Nuclear Free Zone Treaty.

Senator Chipp —Would that stop a future Liberal government allowing B52s to carry bombs?

Senator TATE —I will come to that, Senator Chipp. I will deal with that but I have only 10 minutes. The fact is that the South Pacific Nuclear Free Zone Treaty provides, as this Bill does not, for a system of monitoring, surveillance and control which I believe would be an initial step in any enforcement process one has in mind-whether the matter goes to the courts or to some other forum for sanctions or enforcement to be applied in order to secure the observance of and adherence to the obligation which we all agree should be accepted by the Australian people. What this treaty does is set up a control mechanism, a monitoring mechanism. It provides, for example, that on the complaint of one party, on a suspicion that something is happening which is in violation of the treaty, an independent inspectorate can be dispatched to the country about which the complaint has been made. The inspectorate is under the control of the South Pacific Forum itself in a way which immunises it from any internal domestic law which might try to frustrate its inspection of Australian facilities in order to determine whether there has been a breach of the treaty. All this should be part of a wider arrangement which would overcome what I believe is too narrow and too simple a reliance on judicial enforcement, which is the feature of the Chipp Bill before us. In other words, I am suggesting that we go a step further in relation to providing for more realistic and comprehensive enforcement provisions in accordance with our obligations under the South Pacific Nuclear Free Zone Treaty.

It has been said by Senator Sanders that the definition of `stationing' is much the same in the Bill as it is in the SPNFZ Treaty. That is probably correct. But the definition of `nuclear explosive device' under the Treaty is much wider and I would like to see any fresh Bill that is brought into the Senate cover all those matters.

The question is how we, as Australians, should approach this obligation and how we should incorporate it into our social, political and legal arrangements. I cannot agree entirely with the tone of some of the Government's response if it is meant to suggest that the Australian Parliament does not have a proper role in relation to this matter. In my view, it is not simply a matter of the Parliament filling in, where it is technically necessary, some minor aspect of the SPNFZ Treaty. We should be full partners with the Government, on behalf of the Australian people as their elected representatives, in embodying in legislative form an affirmation of our adherence to the obligation with which we are all concerned. I believe it is very important that the Senate and the Parliament in general should not merely be seen as an implementing mechanism for some minor technical points in regard to the implementation of our treaty obligations. I do not go as far as Senator Harradine would like me to go.

I do not believe-as I believe Senator Sanders misunderstood, but no doubt he was drawing on his United States childhood-that it is the case that the Parliament, particularly the Senate, should be involved in the ratification of a treaty. I believe that a government which has the confidence of the House of Representatives should be able to enter the international arena and undertake international obligations for Australia even if there were a hostile upper House or Senate which would oppose taking on the sort of obligations we are discussing today. To talk about full parliamentary ratification of treaties is not quite the point.

However, I do believe that an obligation, having been undertaken on behalf of Australia in the international arena, should be enhanced-not detracted from-by us as parliamentarians. We should incorporate in a significant way our adherence to that obligation. I certainly do not accept any limitation, as has been suggested, on the power of the Commonwealth Parliament to direct the Executive in relation to the external affairs of Australia. All executive powers, from wherever they are derived, can be the subject of parliamentary direction.

Senator Crichton-Browne —Including funding for the Senate.

Senator TATE —I believe that too. In the Australian context, section 51 (xxix) of the Constitution makes it perfectly clear that this Parliament possesses plenary power in relation to external affairs and that includes a power over the Executive. Insofar as Senator Sanders's notice of motion suggests otherwise, I believe it to be wrong.

I speak only of the possession of capacity to direct the Executive or to be involved with the Executive in these matters. Of course, how we would actually exercise that legislative power would be a different matter. I believe that, in relation to the sort of very major political international obligation that we are speaking about on this Bill, a mixture of non-justiciable, judicially enforceable sanctions and so on would be appropriate. That is why I say that this Bill is too narrow in its approach. As has already been mentioned, this obligation should find some sort of legislative embodiment because it would then make it difficult for any subsequent Australian government to renege on that treaty obligation.

It is very important that we put as large a hurdle as possible in the way of a future government, should it be so minded, being able to go back on this commitment, solemnly undertaken not only under the Nuclear Non-Proliferation Treaty but also under the South Pacific nuclear free zone arrangements. I see much merit in putting a very high hurdle in the way of Australia's ever acquiring nuclear weapons or devices. Our obligations as elected representatives of the Australian people demand that such a step be subject to the fullest scrutiny in these chambers. If an incoming Liberal-National Party government were so minded-I do not think all those on the Opposition benches would be of that view, but if their government were so minded-it should be able to do that only by repeal of legislation along these lines and after full parliamentary debate. That would be the democratic way to go.

Let me return to the Bill. I find the enforcement scheme proposed in the Bill too narrow in its reliance on enforcement by non-elected benches of judges by way of people approaching the court for an injunction. In this Bill people are given standing who are not merely those who would be directly affected by being resident near to the site where it would be alleged that a nuclear weapon had been placed. It also allows elected senators or members of the House of Representatives to approach the court. In that, there is already a recognition by the Australian Democrats that this is a very large political matter and not simply one that normally forms the subject matter of an approach to a court for an injunction. I am yet to be convinced that it is to the judiciary alone that we should look for the enforcement of this obligation. I do not believe that it should play the sole role in securing our adherence to that obligation.

I have already indicated the matters which are of concern to me in relation to enforcement. I simply reiterate the point that the prior existence of systems of monitoring, surveillance and verification would be needed. It would give quite a false impression if that sort of machinery were not in place as a necessary proviso for the effective enforcement of the obligation. When we look at the nuclear free zone treaty, we find some control mechanisms which I believe should be in place in conjunction with or as a preliminary to something along the lines of the Democrats' proposal.

I have already said that the Government should recognise fully and not begrudgingly acknowledge, the proper role of the Parliament in this matter. I think I speak on behalf of many colleagues on this side of the chamber and not merely those in the group to which Senator Jo Vallentine adverted and to which, for various reasons, I do not belong. I believe the Government should bring legislation into this place which affirms the Parliament's adherence to the very obligation undertaken by the Executive in various international forums, including the South Pacific nuclear free zone negotiations. That partnership should be forged between the Parliament and the Executive and should be apparent in legislative form. The Government should not confine Parliament to dealing merely with technical implementation provisions in jargon such as is technically necessary. I believe that would be altogether demeaning to us.

I do not say that there has to be full parliamentary ratification for the reasons that I outlined to Senator Sanders. But we do have a role. A government enjoying the confidence of the House of Representatives ought to be able to ratify and assume the international obligation without the concurrence of the Senate which could be composed of a hostile political majority. But where it is possible, the Parliament should give its support in legislative form. Given the opportunity to affirm the sort of obligation which is in our party policy, and which in a much wider form is embodied in our international obligations, I would certainly be prepared to support the substance of a Bill of this sort which prohibits the manufacture and the stationing of nuclear weapons in Australia.

It seems to me that so much is yet to be done. I do not think that it is years away. I believe it ought to happen during the autumn session of the Parliament. The South Pacific Nuclear Free Zone Treaty was signed only by several countries in the South Pacific Forum on 8 August and is yet to come into full force when the eighth ratification is deposited with the Forum secretariat. I believe it provides a good basis for producing a Bill.

The Government should bring in a Bill which absorbs some of the better features of the Chipp Bill and marries the sentiment underlying the obligations in that Bill with those undertaken by the South Pacific Nuclear Free Zone Treaty. If that plan of action is carried out and such a Bill is passed during the autumn session next year, all Australians will be grateful that we took the time to deliberate and come up with a better expression of our will as parliamentarians than is presently before the chamber. I look forward to that day in autumn 1986. (Quorum formed)

The DEPUTY PRESIDENT —The time allotted under sessional order for the consideration of General Business having expired, the Senate will proceed to the further consideration of Government Business.