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Monday, 7 December 2020
Page: 6897


Senator STEELE-JOHN (Western Australia) (15:39): I move:

That this bill be now read a second time.

I seek leave to table an explanatory memorandum relating to the bill.

Leave granted.

Senator STEELE-JOHN: I table an explanatory memorandum and seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

Australia is one of the few remaining democracies that can legally deploy its defence forces into conflict zones without recourse to the Parliament: the decision is reserved for the executive alone. As kindred democracies around the world have enacted reforms to vest the so-called 'War Power' in elected Parliaments, Australia has remained anchored to a pre-democratic tradition founded in hereditary monarchies and feudal states.

If this anachronism had served Australia well, it might be possible to mount an argument that "if it isn't broken, it doesn't need fixing."

If the release of the Afghan Inquiry report and the full realisation of the extent of the shameful alleged crimes carried out by Australian Special Forces does not comprehensively put this view to rest, it is difficult to imagine what would. On the basis of fabricated and willfully misinterpreted intelligence, Prime Minister John Howard followed the United States and the United Kingdom into an illegal and open-ended war in Iraq. Our Parliament, and by extension the voting public of Australia, were cut out of the decision, despite the fact that hundreds of millions of people around the world organised and campaigned against the decision to go to war.

There are few credible analysts left anywhere who do not regard the decision by hardliners within the Bush Administration to invade Iraq as one of the most grievous strategic disasters in modern history. The vast majority of Australians were right, and the executive authorities in the US, the UK and Australia, were wrong. No inquiry into the decision to go to war has ever been held in Australia, only a handful of piecemeal attempts to pin the blame on intelligence services and shift focus away from the actions of the Howard Government.

At the time, Iraq was not threatening war. There was no connection or allegiance between the secular Baathist regime that ruled Iraq and the fundamentalist Al Qaeda networks responsible for the 9/11 attacks. There were no weapons of mass destruction in Iraq and hadn't been since 1991. Intelligence agencies within the US, the UK and Australia understood these facts, but inflexible groupthink prevailed within the White House, Downing Street and the Prime Minister's office here in Australia. It was rumoured at the time that Australian Special Forces units were among the very first on the ground inside Iraq, even before President Bush went on live television to announce that Operation Iraqi Freedom had commenced.

Australia is entirely complicit in the violent, decade-long occupation that shattered Iraq's social and economic structures, and ignited long-dormant sectarian tensions that ultimately contributed to the establishment of the caliphate over Northern Iraq and Syria.

If there is a strategic policy failure more complete than the catastrophic invasion of Iraq, it is difficult to recall it. This dismal outcome was predicted at the time by many of those who opposed the war, but the executive's lock on the process means that the normal Parliamentary processes of critique and accountability were bypassed. Somewhere between 100,000 and one million Iraqis have paid for this obscene oversight with their lives.

Concurrently with the Iraq deployment, Australia fought a long, costly, and ultimately futile war in Afghanistan. The heaviest cost was carried by the Afghan people: tens of thousands of civilians killed, maimed and traumatised as the US Government's saturation bombing campaign transitioned into a long, untenable occupation.

What we now know, with the release of the Brereton report, is that in lieu of an overarching strategic objective Australian Special Forces soldiers did not act lawfully or respectfully towards the Afghan people. In his report, Justice Paul Brereton has concluded that 36 separate incidents, involving 25 special forces soldiers, resulted in the murder of 39 Afghan civilians, including children, and the torture of two others. This is a national shame.

Justice Brereton also found that commanding officers either turned a blind eye to sanitised reporting, failing to ask the right questions about high kill counts and questionable evidence, or were so disengaged from the troops on the ground that they simply did not know what was going on. Both of these scenarios are a failure not just of the individual perpetrators to do the right thing, or the commanding officers who were supposed to be in charge, but a political failure as well. Multiple Australian governments are ultimately responsible for sending Australian troops overseas to fight in a seemingly endless conflict with limited overarching strategic objectives, and for keeping them there for well over a decade.

The erratic and secretive nature of military deployment decisions in Afghanistan should seal this argument once and for all: no leader, no matter how perfect, can be trusted alone to make decisions such as this on behalf of the whole nation.

It is no longer tenable that the decision to deploy into conflict zones should be left to the executive alone. Currently, the Defence Act 1903 does not allow for any level of transparent decision making, scrutiny and debate, but this is an artefact of legislation, not the natural order of things.

The Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020 inserts a new section 29A into the Defence Act 1903 to require that decisions to deploy members of the Australian Defence Force beyond the territorial limits be made not by the executive alone but by Parliament as a whole. This means debate in both houses, followed by a vote.

This Bill was initiated by the Australian Democrats and supported by the Australian Greens, who took carriage of the Bill after 2007. It is the latest iteration of a Bill first introduced into the Senate in 1985. This year it will mark its 35th year of languishing in plain sight while Liberal and Labor Prime Ministers alike reserve this power to themselves, plunging Australia into a tragic series of overseas expeditionary wars that have had little or nothing to do with the defence of Australia or collective security.

In August 2009, the Senate referred the Bill to the Foreign Affairs, Defence and Trade Legislation Committee. The majority of the committee resolved to refuse to take evidence in a hearing. Nonetheless, the committee made a useful critique of the Bill without undermining its essential purpose, in its report of February 2010.

The Australian Greens' dissenting report into the Bill provided the transcript of an informal hearing that we held, after the majority committee's short-sighted decision not to take evidence directly from witnesses.

This Bill would bring Australia into conformity with principles and practices utilised in other democracies including Denmark, Finland, Germany, Ireland, Slovakia, South Korea, Spain, Sweden, Switzerland and Turkey, where troop deployment is set down in constitutional or legislative provisions. Some form of parliamentary approval or consultation is also routinely undertaken in Austria, the Czech Republic, Italy, Japan, Luxembourg, the Netherlands and Norway. Our ally the United States has a similar provision that subjects the decision to go to war to a broader forum—section 8 of Article I of the US Constitution quite clearly says, "Congress shall have power to declare war". In the wake of the disaster in Iraq, the Westminster Parliament now holds the de-facto war power, a new convention that prevented a rushed deployment into Syria in 2014.

Arguments against vesting the power over troop deployment to Parliament include that it would be impractical, restrictive and inefficient. Such arguments ignore the fact that parliaments can and do make complex and nuanced decisions, rapidly when necessary. As we have seen, decisions about war and peace made in undue haste that do not enjoy the mandate of the population - expressed through the Parliament, if nowhere else - have no legitimacy.

We know that the Australian community supports, strongly, the idea of making sure that the people they elect to represent them are accountable for making the decision to send our troops overseas to risk their lives in armed conflict. A Roy Morgan opinion poll carried out in September of this year found that 83.3% of Australians want Parliament to decide whether our troops are sent into armed conflict abroad. The poll found that support for reform is very strong across the political spectrum with more than 75% of all Labor, Coalition and Greens voters believing that Parliamentary approval should be required before Australian troops are deployed. There is no excuse; in response to the shameful and disgusting revelations from the Brereton Inquiry the major parties must support a democratic process to war.

There are appropriate exemptions made in this Bill to avoid interfering with the non-warlike overseas service with which Australian troops are engaged - referring in particular to new subsection 29A(11). There are also appropriate exemptions in the Bill to provide for the practicalities of situations where Parliament cannot immediately meet - referring to subsections 29A(3) and (7), which provide for the Governor-General to be able to make a proclamation regarding the declaration of war, provided that Parliament is then recalled within a period of two days.

It is time that Australia joined its closest allies and like-minded democratic states by involving the Parliament in the decision to deploy the ADF. The entwined tragedies of our recent military misadventures, and the threat that history may soon repeat, make passage of this Bill more urgent than ever. War is never the answer but if there is ever a time that the government of the day decides to send our troops overseas to war then we - the Australian Parliament and, by extension, the Australian people - should get a say.

I commend the Bill to the Senate.

Senator STEELE-JOHN: I seek leave to continue my remarks later.

Leave granted; debate adjourned.