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Monday, 30 August 2021
Page: 16

Senator KENEALLY (New South WalesDeputy Leader of the Opposition in the Senate) (11:43): I rise to speak to the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020, a private senator's bill brought to this place by the Greens for debate today. The tragic events that have occurred in Afghanistan over the last few days have brought the intent of this bill into sharp focus. The ease and pace with which the Taliban swept across Afghanistan took intelligence services by surprise, resulting in a rapid deployment of troops to conduct evacuation missions. In a speech in the second reading debate on a previous version of this bill in 2011, then Senator Faulkner said:

We live and operate in the real world, and any legislation in here that we enact must be able to work in real life situations and it must be able to pass the real world test.

The real world consequences of this bill would have meant that while we were still here debating about deploying troops the window to evacuate Australian citizens and visa holders would have shut.

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 parliament. The bill would insert a new section into the Defence Act 1903 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 parliament, with certain exceptions. As with previous versions of this bill, Labor believes that this bill leaves too many unanswered questions and may have unforeseen and unintended consequences. The existing practice in Australia is that any decision to deploy members of the ADF beyond Australia's territorial limits is at the sole prerogative of the executive of the Commonwealth. Federal Labor have supported and continue to support that power remaining a prerogative of the executive.

Under Australia's constitutional arrangements, the executive power of the Commonwealth is vested in the Queen and exercisable by the Governor-General, who customarily acts on the advice of the government of the day. This power includes the decision to deploy the ADF to undertake combat operations as well as a range of activities other than war fighting, such as peacekeeping operations, disaster relief and evacuation missions such as that carried out in Kabul last week. In practice, this power is exercised by the Prime Minister and other ministers. These decisions do not require an act of parliament or a decision of the parliament. They are an exercise of executive power under section 61 of the Australian Constitution. Labor regards this longstanding constitutional practice as appropriate and does not support any proposal to alter these arrangements.

One of the arguments put forward by proponents of this bill is that other countries require parliamentary approval before deploying troops on overseas service. It is disingenuous to argue that such a position should apply in Australia. While it is true that forms of parliamentary consultation are required in some other systems of government, it is very important to realise that such comparisons or analogies are, if not invalidated, certainly complicated by the major differences in the constitutional frameworks of these countries. Various iterations of this bill have been introduced into the parliament over the past 35 years, first by the Australian Democrats and more recently by the Greens. Labor's position has been consistent throughout these debates.

It is imperative that the executive have the power to act swiftly and decisively when deploying our troops, not only for the security of our nation and our allies but also to ensure that our troops are operating with legal authority and legal protection. While we believe it is critical that the executive have the flexibility to deploy troops when urgency is required, we also believe it is critical that the decision to deploy is subject to public and parliamentary scrutiny. This scrutiny can take place after the deployment rather than as a prerequisite to the deployment and should not be used as an impediment to commit our troops when the government is required to make quick but considered decisions.

While we on this side oppose this bill, we are firmly of the belief that openness and transparency in government are at the heart of any democracy. Further to this, at this year's Labor Party Special Platform Conference it was resolved that an Albanese Labor government will refer the issue of how Australia makes decisions to send service personnel into international armed conflict to an inquiry to be conducted by the Joint Standing Committee on Foreign Affairs, Defence and Trade. This inquiry would take submissions, hold public hearings and produce its findings during the term of the 47th Parliament. The government is not currently required to consult parliament once troops have been deployed. But history has shown that, following overseas deployments, lengthy and robust debates have taken place in this place, as they should. It was a result of these debates that in 2003 the Senate censured the government of the day, the Howard government, following the Iraq invasion. This option will, as it should, remain available to the parliament.

This version of the bill, like all other previous iterations, leaves too many unanswered questions and may have unforeseen, unintended and unfortunate consequences. Thirteen years ago Senator Ludlam of the Australian Greens introduced the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2008 [No. 2] to the Senate. He said at the time:

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.

On 20 August 2009 the Senate Standing Committee for Selection of Bills recommended that the draft bill be referred to the Foreign Affairs, Defence and Trade Legislation Committee. In February 2010, that committee recommended that the bill not proceed, saying:

It is of the view that the bill leaves too many critical questions unanswered to be considered a credible piece of legislation. It believes that, while well intended, the bill may have unforeseen and unfortunate consequences that need to be identified and resolved before further consideration could be given to proposed legislation.

However, the committee did support debate in parliament on any anticipated, proposed or actual deployments to overseas warlike operations. Senator Mark Bishop, as chair of the committee, said:

The committee has identified a number of deficiencies in the bill that need to be attended to by those who are interested in this debate if the bill is going to be brought forward this time or some time in the future for passage.

Any decision to deploy military forces to combat is the most onerous and serious decision for a government to make. It is a heavy responsibility. It is a life and death decision. This bill does not address the deficiencies identified by the committee and, as such, Labor will oppose the bill.