Bob Brown (Tasmania, Australian Greens) Share this | Hansard source

The Greens oppose this legislation. The legislation attempts to override the Constitution in a most brazen fashion. The law of this land comes from the Constitution and is qualified by the Constitution, and section 119 of the Australian Constitution says:

The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.

This legislation brazenly sets out to override the caveat that the Commonwealth be restricted in deploying troops against domestic violence by the need for the state government involved to make a request. The brazenness with which this legislation overrides that constitutional check and ascribes to the Prime Minister, or the two other ministers named, the ability to call out the troops to employ them against Australians on Australian soil without the authority of the relevant state government is breathtaking.

I say to every senator who will vote on this matter: read section 119 and indeed section 118 of our Constitution and consider whether your obligation is to defend our Constitution or to enhance the right of this Prime Minister in his arrogance to take unto himself powers which are not there and which are disallowed by the Constitution. Section 118 of the Constitution says:

Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records and the judicial proceedings of every State.

This legislation rides roughshod over that full faith and credit which shall be given, at least as the Prime Minister is concerned, and effectively abolishes state law and says that, in determining whether or not troops called out against Australians by this or any future Prime Minister have acted lawfully, you will go to the statutes applying to Jervis Bay—not New South Wales, not Western Australia, not South Australia, not Tasmania, not Victoria, not Queensland, not wherever. Australian troops are brought out against Australians in a domestic situation of crisis without the authority of the state, but look to the statutes of Jervis Bay, says this arrogant government in this legislation, and it is quite explicit about it.

If you look at division 4A—Applicable criminal law—51WA(2), it says:

The substantive criminal law of the States and the other Territories, as in force from time to time, does not apply in relation to a criminal act of a member of the Defence Force that is done, or purported to be done, under this Part.

How dare the government give immunity to Defence Force members called out by a Prime Minister, very probably for a political reason, from the laws of the state that apply! Of course, it will be too late to get a ruling from the High Court to prevent what actions are initiated under this legislation by the defence forces at the behest of the Australian Prime Minister against Australian citizens. There will be, no doubt, challenges in the High Court following that event but, waving this piece of Constitution crushing legislation, this or some future Prime Minister can order out the troops to attack Australians in a domestically charged situation in a way that this nation has never seen before.

Let me give you an example: I was in the rainforests of the lower Gordon River in 1982-83 when a peaceful blockade of citizens, against the wishes of the then state and federal governments, was taking place to prevent the building of the Franklin Dam—and we know consequently that the citizens involved there have been vindicated. However, let us go back to that charged situation. It ended in 1,500 good Australian citizens being arrested. Six hundred were taken to prison. None of them was convicted of any criminal offence consequently, but that did not matter. At the height of that charged situation, members of the then conservative government called for the troops to be brought out.

Under this legislation, the Prime Minister—I doubt Malcolm Fraser would have done it but I have no such doubt about the protectiveness of the current Prime Minister—could call out the troops whether or not the Tasmanian government wanted it and employ them against those good Australian citizens who were there defending the national interest as they saw it, peaceably. Because under this legislation you do not have to say there is any violence; all you have to do is make a reasonable assessment that there is a threat of violence—exactly what conservative members of this parliament were doing at the time they called for the troops to be brought out.

Moreover, I can tell you that during that period the police came to me, when I was in prison, and told me that they had information that violence was going to break out and I should come out and call off the blockade. The deputy senior officer in the Tasmania Police approached me on that premise. So the threat of violence was established in the minds of the police authorities. The whole situation fitted into this piece of legislation. Whether or not the Tasmanian government of the day had wanted it, the troops could have and, I believe, may well have been called out in those circumstances.

This is extraordinarily dangerous legislation. It does not just trespass against our national Constitution, written so clearly by the founding fathers just over a century ago; it also trespasses against the basic spirit of this liberal democracy. The question that arises, of course, is: what does happen if there is a real civil emergency verging on civil war? That is why section 119 of the Constitution is there. It says:

The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.

That is, if the state government requests it. So there is provision in extraordinary circumstances for the troops to be called out if a state government requests it.

I do not know how we arrogate to ourselves the right to override the Constitution. In fact, we cannot but we may think we can. This is ‘think we can’ legislation, where this parliament is being asked by this Prime Minister and his cabinet to daringly say: ‘Well, that Constitution was written in the 1890s and this is 2006 and we have a non-federalist government centralising powers. If the Constitution stands in the way, forget it; put a piece of legislation through the Senate. No doubt it will be rubber-stamped by the government majority in the other place.’ And it has been. Through it goes while the nation is diverted by the sensational inquiry into the Australian Wheat Board and various other matters.

There is more. The Greens amendments here before the Senate are to give Australian citizens at least the assurance that the International Covenant on Civil and Political Rights will be written into this legislation. We may breach the Australian Constitution—although the Greens will not be supporting that—but are other members of this assembly happy to also breach the International Covenant on Civil and Political Rights? If not, you will be supporting the Greens amendment which says that a test of any action in this legislation will be that it is not in conflict with the right to life as contained in article 6 of the International Covenant on Civil and Political Rights.

We take note of the government’s own Human Rights and Equal Opportunity Commission, which in its submission to the Senate through the committee inquiry said that proposed clauses 51T(2A) and 51T(2B) in this legislation ‘impermissibly widen the circumstances in which the Defence Force is authorised to use lethal force’—beyond the limits set by international law. The New South Wales Council for Civil Liberties and the senior legal authorities in the country expressed concern to all of us in the committee proceedings leading up to our debate today.

Finally, the Greens are moving to amend this legislation by saying: let us remember that we are a democracy and that the people elect a parliament but do not elect a Prime Minister. While the Prime Minister may think that he should have all the powers that this legislation, which he drew up, would give to him, against the strictures of the Constitution and what Australia has stood for over the last 100 or so years, the Greens say that, if the Prime Minister does call out the troops against Australians, parliament should be recalled pronto and either house of parliament should have the right to veto that prime ministerial use of power in such extraordinary circumstances: ‘Let us have a parliamentary debate about what the Prime Minister is doing.’ Can you imagine the uproar? Troops brought out to quell a situation not of domestic violence but, as perceived by the Prime Minister of the day, of threatened domestic violence. Of course parliament should be recalled under those circumstances.

One shortcoming of the Constitution, as the Greens see it, is that parliament is not required to authorise the use of the defence forces overseas—for example, in the Iraq war. The Prime Minister can do that. Unlike the American system, we do not require the head of state to get the permission of the parliament. We should do. But this goes way beyond that. What the Greens amendment does is to very sensibly say that, if the Prime Minister is bringing out troops against Australians, let us recall parliament and see whether both houses of parliament agree to the use of that authority. It has swept aside the need for the states to give permission to call out troops against citizens of that state. Let us have the national parliament—both houses of the national parliament—empowered to immediately review the prime ministerial decision or, in the absence of the Prime Minister, the decision by the Minister for Defence and call off the troops if they are being used for political purposes. It is an extremely important caveat on the excessive and wide-open opportunity for abuse that is written into the legislation which the Howard government has put before the Senate today.