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Tuesday, 18 May 1993
Page: 751


Senator CHAMARETTE (8.06 p.m.) —I will speak only to the first of these two Bills, which is the Charter of the United Nations Amendment Bill 1993. I speak in opposition to the Bill. I realise that I am a lone voice in this regard, but I feel that the Bill raises some important issues, fails to address some others and would require much more scrutiny on my part and questions to be answered before I could support it in its present form.

  The Bill raises some important issues. Firstly, it seeks to establish a mechanism by which the Governor-General in Council can make regulations implementing Australia's obligations under the United Nations charter. We are told in the explanatory memorandum that this is necessary because the current means of implementing sanctions are inadequate. The measures, whilst described as being largely effective, have not prohibited all activities in breach of United Nations sanctions. It also refers to the fact that different resolutions have required implementation by way of making use of regulations under the Customs Act 1901, the Air Navigation Act 1920, the Banking Act, the Migration Act 1958 and some others.

  I am all in favour of an adequate way to fulfil the requirements of our covenants and agreements with the United Nations. Until now, a range of sanctions has been implemented in various circumstances by means of regulations under a whole clutch of existing Acts. The Bill before the Senate seeks to draw together the means by which sanctions can be implemented, thus fulfilling Australia's international obligations.

  That is all well and good, but we have not been told the kind of regulations that the Government wants to be able to make which cannot be made under the present system. I find it difficult to understand how previous sanction regimes could have been put in place if these powers did not already exist. Did we not freeze South African accounts? Have we not been able to prevent Australian companies from providing computer services to South Africa? Perhaps the Minister for Foreign Affairs (Senator Gareth Evans) may like to enlighten us on some of these issues later.

  The second matter raised by the Bill is that regulations made under this Bill would be subject to disallowance by the Parliament as provided for in the Acts Interpretation Act 1901. This is made clear in the explanatory memorandum. However, it is hard not to come to the conclusion that the Government does not intend for such regulations ever to be disallowed. It has been at great pains to point out that, if Australia does not implement sanctions as required by United Nations Security Council resolution, we will be in breach of our international obligations.

  I believe that by using this approach to the implementation of sanctions the Parliament is being denied implicitly, if not explicitly, its functions of scrutinising the work of executive government. But more—and this is a more positive approach for opposing this Bill—if the Executive can implement sanctions simply by regulation and effectively without parliamentary scrutiny, then those sanctions will be put in place with far less public attention than has previously been given. A positive process by which sanctions are implemented must be preferred so that Australia as a whole can own the action being taken against a foreign country.

  The purpose of sanctions surely is to let a foreign country know that its actions are unacceptable to the international community. If that is so, then Australians should be aware of the actions being taken in their name. I believe that this Bill reduces the level of public awareness. I realise that the Government does not intend to act in secret in implementing sanctions, but I believe that having such sanctions at the very least debated in the Parliament is an important part of public awareness. As we know, sanctions cause grave harm to civilians, including children, and can place us in a questionable position in relation to human rights. It is something that does need scrutiny and open debate.

  There is one other matter which does not appear in the Bill itself although it has been raised in the Bill's documentation. We are told that the legislation will not have the effect of taking away from the Government the power to decide whether the imposition of sanctions against a particular foreign state is in Australia's national interests. Paragraph 6 of the explanatory memorandum reads in part:

The legislation will not have the effect of taking away from the Government the power to decide whether the imposition of sanctions against a particular foreign state is in Australia's national interests.

It further states:

It would only be after the making of regulations under the legislation, which would be subject to the normal provisions regarding disallowance in the Parliament, that sanctions would be implemented. It would be open to persons aggrieved by a decision to make particular regulations to claim that their making was neither necessary nor convenient for applying measures adopted by the Security Council.

I cannot understand how this can be, given the emphasis on Australia's international obligations. Either we are going to abide by our obligations as part of the international community, or we are going to follow the dubious dictates of `Australia's best interests'. It seems strange to me that we would want to pass such legislation but still retain a right to say no.

  A number of questions need to be answered concerning this Bill, and it needs more work. If I had had sufficient time to look at this, I would have moved an amendment which referred the Bill to a committee. I realise that I am the only person who has expressed these concerns, apart from Senator Harradine who did raise some similar questions to mine, and I feel that further scrutiny by a committee would be warranted to allow such a committee to examine this Bill in terms of four issues.

  First, there is the manner in which it reduces parliamentary scrutiny in relation to the Executive Government's exercise of its obligations under the charter of the United Nations. In the present situation, as has been said, regulations are made under a number of Acts thus presenting the Parliament with a range of disallowance options. The Parliament does not have to throw out the entire set of sanctions applied in a particular case but can be more selective. So the Bill appears to reduce this scrutiny mechanism to only one measure, thereby forcing the Parliament to either accept or reject in toto.

  Secondly, the Bill needs to be examined in terms of the effectiveness of the disallowance provisions of the Acts Interpretation Act 1901 in relation to actions by the Government in implementing resolutions of the UN Security Council. Can it be said that the Parliament has an effective disallowance power if, in the exercise of that power, it puts Australia into breach of its international obligations under the United Nations charter? While the history of sanctions under Security Council resolutions to date has been praiseworthy and Australia has not sought to differ from such resolutions, should we enact legislation which is based only on that history? Can the United Nations not change in such a way that Australia may at some future time disagree with the sanctions resolution?

  The third matter relates to the effectiveness of the current means of enacting sanctions available to the Government. The Charter of the United Nation Act has been in existence for over 45 years. While it is true to say that during that time, for various reasons, sanctions have been a rare means of action by the international community, they have been used—sometimes effectively and with wide ranging support, and sometimes not. At times, some of us have argued that sanctions should have been used when military force was used instead. I find it interesting that the Government has now discovered that it has insufficient powers to implement sanctions adequately. If the Senate is to deal properly with this request for a change of this nature, I believe that we are duty bound to examine the change very carefully before passing the legislation.

  Fourthly, does the Bill overcome the perceived deficiencies in the current sanctions regulation mechanisms? There are two ways of looking at that question: either the Government wants a completely free hand in making any regulations it wants and which it feels may suit the situation—I am not sure that the community would be comfortable with such an open-ended mechanism—or the Government can inform the Senate of precisely those powers which it believes it will need to meet situations which may arise. Of necessity, that would be far more difficult an approach but one which may be more satisfactory in the long term.

  This legislation has a feel about it of being rushed. Very few people have heard of it and there has been no public debate. No doubt some honourable senators will want to tell me that debating how we enact UN sanctions is not likely to provide the riveting television viewing of the pay TV exercise and that generating public debate will be almost impossible. No matter how true or otherwise such a view may be, the nature of the legislation is such, I believe, that at the very least there should be opportunity for public debate. That can only happen if we in this place ensure that legislation receives the scrutiny that would take place through the committee process. That is my reason for opposing this Bill.