Senate debates

Monday, 30 August 2021


Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020; Second Reading

11:15 am

Photo of Jordon Steele-JohnJordon Steele-John (WA, Australian Greens) Share this | | Hansard source

[by video link] The Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020 comes before the parliament at a vital time, as the Australian community looks on with sadness and great frustration as a humanitarian crisis unfolds in Afghanistan. At the end of Australia's longest war, it is vital for us to immediately analyse how it came to this and take urgent steps to ensure that we never again are involved in a colonial war of aggression.

There are many aspects and many issues that led to the Australian engagement in Afghanistan. It's a complex topic that has been the subject of much academic debate in the last two decades. However, it is clear that one of the key factors which led to our initial engagement and continual presence in Afghanistan—under conditions where there was a profound lack of mission clarity, in that the enemy was unidentified and the general purpose of the deployment unclear—was that the Australian people were taken to war via the unilateral decision of a prime minister. In the ensuing 20-year period, there was no requirement to seek the authorisation of the Australian parliament to continue that deployment, and there were very few mechanisms by which, publicly, the aims of the war—its scope, its duration and its legal basis—could be transparently analysed.

This is not a situation that is unique to Afghanistan. It is the case that, right now, the Australian Prime Minister and cabinet is empowered to unilaterally take Australia to war. In the previous decades we have seen this happen on multiple occasions: first in Vietnam, then in Afghanistan and also in Iraq. In each of these conflicts, there is a connecting thread. It is a connecting thread of allegiance and of self-interest. We went to war in Iraq and Afghanistan for one reason and one reason only: because it served America's strategic interests and it therefore served Australia's strategic interests. John Howard took us into those colonial wars of aggression because it suited the United States and it therefore suited him, strategically and politically, and we stayed there for 20 years, in the case of Afghanistan, because it suited the United States and, therefore, it suited the Prime Minister of the day and the Labor Party. We are now leaving primarily because it suits the strategic interests of the United States and therefore it suits the strategic interests of the Morrison government.

Any and all arguments as to the humanitarian nature of these engagements—putting aside the oxymoron that is the idea that you can bring peace and humanity at the end of a gun—are made to justify and to overcover the central reason for the presence. At this moment, there is an urgent need for this parliament and for this government to act in a multiplicity of different ways to support the people of Afghanistan in the middle of this unfolding humanitarian crisis. We must also look to the legislative mechanisms that would, in the future, prevent such a war from being engaged in, and one of those mechanisms is this bill.

This bill would do a few very simple yet powerful things. It would require a vote of both houses before Australian personnel could be deployed overseas and it would require—should that resolution and empowerment be given—the Australian defence minister to provide to both chambers a comprehensive report, every two months, speaking specifically to the scope of the engagement, the legal basis for the engagement, the duration of the engagement and what is being done to ameliorate, to end, the conflict and crisis, to enable the resolution to be withdrawn. This would have a couple of effects—and I note here that, within this legislation, there are very carefully crafted carve-outs and instances to allow for emergency situations, and I also note that this bill speaks specifically and exclusively to the deployment of Australian forces beyond our territorial boundaries. The bill would have a number of beneficial effects. It would play a number of roles in ensuring that we do not end up in a situation like Afghanistan again—and let me be really clear: when I say 'we do not end up in a situation like Afghanistan', I am also talking about ensuring that no nation is ever again subjected to the humiliation and degradation of colonial occupation.

So the bill would do the following things. Firstly, by placing the authorisation for an armed conflict within the parliament, it would put many a barrier between the authorisation to deploy overseas and unscrupulous, egotistical and misguided politicians who may seek to exploit a national or international crisis for their own personal or strategic aims. It would require every senator and MP to actively scrutinise the case for war and to actively scrutinise the intelligence being placed before us, because we know what happened without this level of scrutiny and accountability, particularly in relation to the purpose of armed conflict deployments and the impacts on the nations in which they are deployed. If parliament is not given the opportunity—if the public are not given the opportunity—to scrutinise legislation, then we go to war based on lies. That is what happened in Iraq. That is what happened in Vietnam. We went to war based on lies because we were not able, as a community, to scrutinise and get to the bottom of the case being put to the people.

I also note that this ability to maintain clarity and to have accountability in relation to the purpose, scope and legality of an engagement also serves the purpose of maintaining greater scrutiny and accountability of the armed forces. I note here the comments from Justice Brereton's report, that part of the culture that developed in our armed forces in Afghanistan—part of the toxic mixture that came together to enable such horrific alleged war crimes in Afghanistan by our special forces—was the lack of mission clarity and the nature of fighting an unidentified enemy in an insurgency environment for a prolonged period of time. This legislation would give us the ability to be continually scrutinising—continually asking the questions: Why are we there? What are we doing? What is being done to get out? These are the urgent questions that need to be considered. We need to put these barriers between politicians and their ability to deploy the ADF to armed combat, because 20 years of war have shown that they cannot be trusted with this power.

The Australian Greens have the view, alongside the community, that we should, as I say, never again participate in one of these colonial wars of aggression. Our goal must always be peace, and it is not lost on any member of our community that at the time of both of these engagements there was great community uprising and opposition to them, which was blunted again and again by the absence of an opportunity to pressure members of parliament into reflecting that view in the parliament, in their chambers. This bill would ensure that, should America or any other power ever ask us to go with them into war, should an Australian Prime Minister ever again come before the nation and make a case for war, that would have to be fully and transparently scrutinised by the parliament not once but continually over the life of the deployment, the goal being to bring that deployment to an end and restore peace.

Perpetual war at the behest of the United States must be a thing of the past. We must consign it to the dustbin of history. The blood that has been spilt, the lives that have been ruined, the countless decimated villages of Afghanistan and Vietnam and Iraq call on us to take this action, as do the mortally wounded, the maimed psyches of so many of our returned service personnel, who did a job that they should never have been asked to do, in an environment they should never have been asked to work in, to an unclear brief that was beyond their skillset or their training. The worst thing of it all, the worst shame of it all, is that prime minister after prime minister, defence minister after defence minister, one after another, the politicians in this place, knew. They knew that there was no point to these conflicts other than serving America's interests. They knew that there was no way out. They knew that there was no clear purpose, yet they kept sending Australian personnel over there and they kept a presence in a nation which caused incredible harm and damage.

There must be political transparency. There must be political accountability. This parliament, representative of the community, must take upon its shoulders the full responsibility of ADF deployment. It is not good enough that the closest many MPs get to the reality of warfare is shaking the hand of a veteran on Anzac Day or participating in carefully stage-managed exchanges in nations like Afghanistan. It is not good enough. If the families of Australian service personnel have to sit up through the night wondering whether their loved ones are okay, if the families of folks in Afghanistan have to sit up through the night wondering whether the throw of that chopper means the Red Beards are inbound, that of their loved ones is going to be taken, then MPs too should sit with that burden, should sit up through the night wondering if the case was good enough, feeling the responsibility. This we must do. This is what this legislation is focused on, and I commend it to the Senate.

11:29 am

Photo of David FawcettDavid Fawcett (SA, Liberal Party) Share this | | Hansard source

[by video link] I'll just point out to Senator Steele-John that Australia, since Federation, has not participated in colonial wars of aggression. I remind listeners to this debate of the connection between the Taliban, al-Qaeda and Jemaah Islamiyah. I can give 2,977 reasons, the lives lost in the US, and 202 reasons, the lives, including 88 Australians, lost in Bali, as to why Australia was involved in that conflict in Afghanistan.

As I commence my contribution to the debate on this draft legislation that has been introduced on behalf of the Greens by Senator Steele-John, I do note that I have spoken on previous Greens bills seeking to reform war powers. Given that this bill, the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020, does not address the concerns that were raised with previous attempts, including concerns highlighted by the scrutiny of the Senate Foreign Affairs, Defence and Trade Legislation Committee, I will flag upfront that I will not be supporting the bill.

This bill is a revised version of the one introduced in the Senate in 1985 by Senator Colin Mason, a Democrat from New South Wales. The changes in this bill consists mainly of detailed provisions relating to emergency situations which occur when the parliament is not meeting and the information which is required to be provided to the public and to the parliament. This bill would insert a new section in the Defence Act 1903 under which the 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 some exceptions. The bill is similar in effect to a bill which was introduced in the Senate in 2014 by Senator Ludlam. As I noted when I spoke in 2014, his bill then was essentially unchanged from the 2008 bill of the same name which was also introduced by Senator Ludlam.

Given that this bill has origins in previous bills, it is instructive to go back and look at the Senate Foreign Affairs, Defence and Trade Legislation Committee inquiry that examined the bill put forward by the Greens in 2008; the report also referred to the original bill put forward by the Democrats. The Senate committee inquiry was comprehensive. It received a range of submissions from civil society and the department. In the concluding remarks of its report, the committee, whilst acknowledging 'the critical importance of parliamentary debate', 'stopped short in accepting the requirement for both houses of the parliament to approve the deployment of Australian troops'. It particularly focused on the issue of the treatment of classified material, observing:

… the disclosure of classified or sensitive intelligence may well compromise an operation and the safety of Australian forces or those of their allies.

The report also made the point that if in order to protect our forces or our allies classified information had to be withheld from the parliament then those that this bill would require to make the critical decisions about deployment of forces would not be fully informed, and that would be 'an equally concerning situation for the security of the nation and its forces'.

Some proponents of reform have suggested that a small group of opposition MPs could be briefed and that this would facilitate an informed parliamentary debate. An example of that is the article in August 2013 by the group Be Sure On War. But to accept this premise actually supports the current situation, whereby a small group is briefed and the majority of members and senators have to take their word for the veracity of the information upon which the decision to deploy was made. It's unclear how parliamentary debate under the circumstances proposed would be any more informed and effective than the status quo.

The committee found, after some deliberation, that 'the process of seeking Parliamentary approval may, in some circumstances, cause difficulties for the effective and safe deployment of Australian forces'. It also had 'concerns about possible unintended consequences that may arise including implications for the Defence Force should approval not be forthcoming after forces have been dispatched in response to an emergency'. I notice that this current bill has similar provisions, whereby the Prime Minister could advise the Governor-General, who can make a declaration of an emergency and forces can be dispatched and then you can have the debate. But this creates the possibility of parliament not approving the deployment after troops are already in combat. That means you then have to go through the dangerous, logistically difficult and morale-sapping act of withdrawing forces who may be tactically engaged with the enemy. It would also fundamentally affect Australia's reliability as an ally at a time when the strategic update of 2020 has highlighted that our alliances with other nations with whom Australia has a defence and security agreement are more important than ever.

Finally, the report talked about a range of activities where Australia deploys forces in a situation where they may have to use force. Antipiracy operations are a classic example. The report concluded that the executive must retain the ability to deploy forces. Let me turn to how these decisions are made here in Australia.

Here the power to make war, deploy troops and declare peace are part of the executive power of the Commonwealth. The executive power is recognised in section 61 of the Constitution. While executive power of the Commonwealth is exercised by the Governor-General on the advice of the federal Executive Council or responsible ministers normally, it is contemporary practice that decisions to go to war or deploy troops are matters for the Prime Minister and cabinet. The National Security Committee of Cabinet was established in 1996. This body is now the primary body—in fact, I would argue the only body—that has access to all the classified information and briefs from departments to inform decisions.

A common argument from proponents of war power reform is that Australia is one of the few remaining democracies, particularly Westminster democracies, that can legally deploy its defence force into a conflict zone without recourse to the parliament. As I outlined in 2014, that is incorrect. Let's look at the Five Eyes partners, starting with Canada.

Under Canadian constitutional law the federal cabinet can without parliamentary approval or consultation commit Canadian forces to action abroad, whether in the form of a specific current operation or possible future contingencies resulting from international treaty obligations. Under the Canadian Constitution—and that's their act of 1867—sections 15 and 19, command of the armed forces is vested in the Queen and exercised in her name by the federal cabinet acting under the leadership of the Prime Minister. So Canada has exactly the same executive power that exists here in Australia.

In New Zealand the formal right to declare war was clearly part of the royal prerogative inherited from Great Britain in 1840, and it remains an acknowledged part of New Zealand law. Defence and wartime prerogatives include the right to declare war and peace and the deployment and armament of defence forces. The royal prerogative is exercised by the Governor-General of New Zealand on the advice of elected ministers or executive by the authorities of the letter patent constituting the office of the Governor-General.

In the United Kingdom—and this is the case that's often quoted by people who think Australia is out of step—the deployment of troops and the issuing of orders to engage in hostilities are matters of royal prerogative exercisable by ministers. The government has freedom of action in this regard and the parliament does not need to give its approval. I repeat that: parliamentary approval is not required in the UK. It is true that Labour MP Tam Dalyell introduced the Military Action Against Iraq (Parliamentary Approval) Bill in 1999. That was the first of a number of bills challenging the royal prerogative, including the monarch's war powers, to be codified and subject to parliamentary scrutiny. None of these bills have passed the House of Commons.

It's also true that, despite there being no legal requirement to consult or seek approval, both the Blair and Cameron governments have sought in principle support from the House of Commons for potential UK military action. While some, including Prime Minister Cameron, have described this practice now to be a convention, it is not codified in law and the scope of obligation and the application of this practice are not universally supported.

In the case of the United States, their constitution—article I, section 8, clause 11—grants the Congress the power to declare war, to raise and support armies and to provide and maintain a navy. The President is made the Commander in Chief of the armed forces under article II, section 2, clause 1. The specific power to deploy US armed forces is covered by the War Powers Resolution of 1973, also known as the war powers act. The War Powers Resolution imposes on the President that the President in every possible instance shall consult with Congress before introducing US forces into hostilities or into a situation where imminent involvement in hostilities is clearly indicated by the circumstance, but the terms 'every possible instance' and 'consult' are not defined by the resolution and they've been interpreted in different ways at different times. Notably, the term 'consult' does not equate to approval of Congress—a matter that is contemplated by this bill before our Senate today.

Many US presidents have claimed that the War Powers Resolution is an unconstitutional infringement on their authority as the Commander in Chief and have refused to be bound by it—the courts likewise. In 2003 a judge of the district court rejected the contention that the President must have congressional authority to order American forces into combat, saying that the case law makes it clear that the Congress does not have the exclusive rights to determine whether or not the United States engages in war.

Whilst at a broad level I understand that our parliament has an interest in what is occurring and a moral obligation to hold the government to account, I have deep concerns about the unintended consequences of the parliament being involved in executive decisions around the use of force. In this debate and previous debates people have referred to the wars in Afghanistan and Iraq. But in those cases would parliamentary debate really have made a difference as to whether forces were deployed or, more particularly, in the outcomes that were achieved? I, along with many others, will doubtless analyse and debate the decision to withdraw NATO alliance troops in the time frame and manner we have witnessed in recent weeks, but it raises the question: if the parliament had to give approval to deploy forces, would we have had a different outcome? The answer is: not necessarily, because the decisions regarding the withdrawal were taken by the US decades after the context of the initial response to the 9/11 attacks, which had widespread support around the globe.

If the ongoing approval of the legislature is required, the logical question then is: how deeply will parliaments become involved in the strategic, operational and tactical decisions of armed forces when approaching the issue? You could argue that requiring a postwar plan is a strategic consideration, but it opens a grey area about how deeply parliaments will reach into decisions beyond the decision to commit troops. That is what they do in theatre. Vietnam is a case in point where political interference in how the war was fought resulted in bad outcomes, as opposed to just setting a clear military objective and then allowing the military to use the most effective means to achieve the outcome,.

As I draw my contribution to a close, I note for the benefit of people listening to this debate who have an interest in this subject that, since I last spoke on a Greens bill—which was in 2014—Dr Brendan Nelson, who was defence minister when I was a member of the House of Representatives in the Howard government, has published in Papers on Parliament No. 63 in 2015 a very informed discussion on this issue, titled 'The role of government and parliament in the decision to go to war'. I commend his paper to those who are interested in the subject.

In conclusion, it's important for Australia's ability to shape, deter and respond to threats to Australia and our national interest that we do not remove from the executive the powers that it currently has, particularly if doing so is on the basis of false assertions. The assumption that our allies and the majority of democracies do not give their executives this power is not correct. There has been consideration in detail of similar bills that have been moved by the Democrats and the Greens in the past. The consideration of committees with members from multiple parties has reached the conclusion that the bills in question should not be supported.

Senator Steele-John made the point that many members of parliament don't have much contact with the military. As somebody who spent over two decades in the military and who has spent most of his time in the parliament involved with foreign affairs, defence and trade and intelligence and security work, I support the measures that we currently have in place. In the absence of detailed measures that have been analysed and found to address the concerns of previous committees, and the concerns that I have raised previously, I cannot and will not support this bill.

11:43 am

Photo of Kristina KeneallyKristina Keneally (NSW, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | | Hansard source

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.

11:52 am

Photo of Rex PatrickRex Patrick (SA, Independent) Share this | | Hansard source

[by video link] I want to briefly comment on one of the things that Senator Fawcett said in his contribution to this debate, talking about the need for us to go to war in Afghanistan in response to an attack on the United States. It is worth noting that at the time we chose to go to war the goal was in fact to honour our ANZUS commitment but also to rid Afghanistan of the al-Qaeda threat. Somewhere along the way, the mission evolved into something different, and I think we need to recognise that as we discuss this further.

I want to speak on the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020. I strongly support the aims of the bill—that is, to make overseas deployment of the Australian Defence Force subject to parliamentary approval by both the House of Representatives and indeed the Senate. I commend the Greens for bringing this bill before the Senate, picking up, as they acknowledge, the initiatives of the former Australian Democrats, going back as far as 1985.

Six years after the first proposal, the Hawke Labor government committed the Australian Defence Force to the first Gulf War, back in 1991. In the three decades since, we've seen further overseas ADF deployments, notably as peacekeepers in East Timor in 1999 and in the Solomon Islands in 2003, and in the war in Afghanistan from 2001 and in Iraq from 2003. Those deployments in Iraq and Afghanistan have now thankfully come to an end, with the war in Afghanistan being the longest-ever overseas military conflict for Australia.

Engagement in military conflict overseas is a potentially momentous national decision with far-reaching consequences, not only in terms of potential casualties and economic costs but also in terms of political and social division. Such decisions should not be the exclusive preserve of the executive government or, as is actually the case, the highly secretive, exclusive club of the National Security Committee of cabinet.

This bill includes provisions for immediate executive actions in times of emergency, subject to subsequent referral to the parliament for approval by both the House of Representatives and the Senate. I note that that is an approach adopted in some overseas jurisdictions. It also requires regular reporting to the parliament on ongoing overseas deployments. There may be argument about the details, but the underlying principles of this bill support democratic accountability.

There should be no doubt about the authority of the Australian Defence Force to act in its own defence—for example, in naval exercises involving freedom of navigation. We also need to think about the potential involvement of allied military facilities in Australia and the use of Australian and joint facilities here. The Joint Defence Facility Pine Gap is not only a strategic intelligence collection facility; it directly supports intelligence collection of high tactical relevance. The Joint Defence Facility Pine Gap will be directly involved in any military conflict the United States is engaged in across Asia and the Pacific. The Naval Communication Station Harold E Holt at North West Cape supports the US Navy's submarine operations in the Indian and Pacific Oceans. US marines and other US forces are now a permanent presence here in Australia, in the Northern Territory.

We also have to carefully consider Australia's changing strategic circumstances. For more than a century, with the exception of the war in the Pacific from 1941 to 1945, Australia's military engagements have taken the form of sending expeditionary forces overseas to fight alongside either the United Kingdom or the United States. The design of this bill broadly reflects historical experience. In the future, Australia may face a much more strategically contested environment much closer to home. We need to think carefully about precisely how enhanced processes of democratic decision-making and parliamentary approval of military operations will function in our changing strategic circumstances.

The coalition government and the Labor opposition are not supportive of this bill. They are at one in the view that decisions of war and peace should be in the sole hands of the executive government. However, this is an issue that cannot be swept aside and should be the subject of further debate and consideration. For that reason I believe the next appropriate step would be for this bill to be referred to the Senate's Foreign Affairs, Defence and Trade Legislation Committee for inquiry and report. I do note what Senator Keneally said about a referral in the next parliament. I don't understand why the Labor Party always target measures in the next parliament; they always procrastinate. I accept what Senator Keneally says about the need to examine this issue in more detail, but there is no reason to wait until we enter into a new parliament. I commend the Greens for bringing this bill to the Senate.

11:58 am

Photo of Eric AbetzEric Abetz (Tasmania, Liberal Party) Share this | | Hansard source

[by video link]. The Greens bill before us today is potentially well-meaning, but it is seriously ill considered and provides another example of and insight into how Green ideology is never tested against the practicalities of real life. The name of the bill is the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020. It sounds good and, at first sight, it might arouse some interest amongst colleagues. But they should not be misled. Laudable as the title may be, its practical consequences are very real, and, as a result, it needs to be defeated. The amendment bill being proposed by the Greens could rightly be renamed the 'Prejudicing Our Troops and Giving our Enemies a Head Start (Another Bad Idea by the Greens) Bill'.

Defending our nation and its interests is the most important task of any government. If you can't protect your borders, your integrity as a nation state and all the blessings that go with that are compromised. Thankfully, we have men and women willing to defend us. They are highly trained and are willing to make the ultimate sacrifice for our protection. They are our flesh and blood. They are our fellow Australians. We celebrate them and their forebears each Anzac Day. Their lives are precious. When they respond to the call of active service, they can be guaranteed that their Commander-in-Chief, the Governor-General, will not be sending them without having thoroughly weighed up all the alternatives. The Governor-General relies on the advice of the Executive Council, which is formed from the democratically elected government of the day. Ultimately, the government is answerable to the parliament and the people. Our founding fathers gave the power to the executive in section 61 of our Constitution, a constitution ratified by the people of Australia, our forebears. They knew what they were doing.

We all aspire to avoid conflict and warfare. But, human nature being as it is, we'll continue to be engaged in warfare. That is a matter of great regret but also a reflection of the unfortunate reality. We need to be prepared and nimble, and this may require covert activity and it may require pre-emptive activity. If one were to be an enemy of Australia, one would be salivating at the prospect of the Greens' bill being passed and they would be dejected at its failure. Imagine a two-day or even two-minute parliamentary debate on whether to attack somewhere. Pre-warned or forewarned is forearmed. How could anyone think that that is a smart, strategic idea?

We live in a complex and uncertain strategic environment. Intelligence may advise of enemy troop movements which could be landed within the hour. Things are a lot more nimble and quicker these days than when our forefathers quite rightly gave the executive the right to commit our troops to war. Today, in the 21st century, it is all the more important that the executive and the National Security Committee have the flexibility that is needed. Should we lamely wait for the enemy to arrive or pre-emptively strike them before they reach our airspace and our land mass? These are the real questions that need to be dealt with and asked.

I, for one, hate the prospect of war. I dislike it immensely. It is something that we should all seek to avoid. But, unfortunately, we do know that from time to time war is needed, and peace is not simply the absence of war. We recognise that there is, from time to time, the need to defend our country, our values and indeed the values and interests of like-minded nations who have come to our defence in the past—and, similarly, we have a right and duty to come to their aid in the future. Every now and then in these debates people like to have a whack at the United States, gratuitously so, but let's not forget the Battle of the Coral Sea, where US personnel—men mainly—died to protect Australia from direct invasion. These troops were deployed overseas by another country to protect us. Similarly, from time to time, our men and women are being sent overseas to protect the interests of other countries. It is the right and proper thing to do. It is what friends do for each other.

Under this bill, a report, along with a proclamation, would need to be tabled in the parliament, which would compromise the operational security of our Australian defence forces. I, for one, cannot and will not be party to such a change. Under the provisions of this ill-conceived bill, the enemy would be provided with a notice of the expected geographical extent of the deployment, the expected duration of the deployment and the number of members of the ADF proposed to be deployed. My goodness, what more do we want to feed the enemy! What more do we want to tell them about our manoeuvres, their geographic location or how many soldiers we're going to send in? This is all vital tactical information which should never be disclosed to our enemy. Armed with such information, those forces opposed to our interests could and would reconfigure and take tactical advantage in preparation. And the winner is? Not Australian troops, not Australia and not Australia's interests—let alone our democracy. The only winner will be the enemy. Surely it is our duty to avoid such risks being placed on our personnel? They deserve better, as do their families.

The geographic restrictions in the Greens bill do not reflect the modern strategic environment. It makes one conclude that the drafters of this bill have drawn deeply on their experiences of playing board games like Risk, without having a genuine appreciation and understanding that, today, the domains of space and cyberspace are also part of the equation. This bill also gives no consideration to a situation where we might be serving with like-minded freedom-loving countries. Surely they need to know that they can rely on us, not that the plug might be pulled every couple of months by a moving majority in the Senate?

Let's be exceptionally clear: under our parliamentary democracy, if the executive does something which the parliament disapproves of, a motion of no confidence in the government can be passed in the House of Representatives, and then there are flow-on consequences of that. To suggest that the National Security Committee or the executive has unfettered powers in this space is, of course, wrong. It's false. It serves a particular narrative but it does not represent the truth. The parliament still is the ultimate arbiter. If troops are sent in in circumstances where the parliament is in strong or strenuous disagreement with that action then the parliament can take the necessary activity. But to say that parliamentary approval has to be given in advance, with those matters that I outlined before, would be to give the enemy a great strategic advantage, to the detriment of our operations and, most importantly, to the detriment of the wellbeing of our Australian Defence Force personnel, to whom we owe the greatest responsibility in seeking to preserve life and limb.

Further, the bill suggests that there should be two-monthly reports to the parliament as to the extent of the operation. Can you just imagine saying in the parliament, 'We expect this to only go for another one month, or an extra three months,' or, 'We hope to withdraw within the next six weeks or eight weeks, depending on particular strategic circumstances'? What does that tell the enemy about how to position themselves?

To broadcast these matters would do a great disservice to Australia's interests and of course to our personnel.

As to subsection 10 of the bill, in paragraph 17 of the explanatory memorandum we are told that this subsection provides that, when members of the Defence Force are deployed overseas in the circumstances, the minister must report in writing to each house of the parliament every two months on the status, the legality and the scope—the scope!—and anticipated duration of the deployment. Well, my goodness! If I were the enemy, I would be demanding this. I would be loving it. I would ensure that, as soon as this statement were tabled or given in the Australian parliament, I would be there, feeding it in to those who were organising the enemy side.

It is, I suspect, well-intentioned, but it really is majorly flawed to have this bill come before our parliament. I trust that the Senate will see the unwisdom—if that is a word—of this bill. It sounds good on the surface: 'Yes, let's have parliamentary democracy involved; let's have a full debate before sending people.' But during that debate the enemy can marshal. We could deny ourselves a pre-emptive strike. With the reports every two months, the enemy would get a very strong insight as to what we were thinking and what our strategy was. And, of course, it stands to reason that, in circumstances of war—as horrific as they are and as much as we try to avoid them—there will be the need for very quick strategic advances, or, indeed, withdrawals. There may be very tough decisions to be made. And we'd have that broadcast, for the benefit of so-called democracy, when we know that the real benefit will not be for democracy but for the enemy.

I would encourage the Australian Greens to reconsider this bill. We have a wonderful parliamentary democracy. It has worked exceptionally well for us since the Commonwealth of Australia was brought into being by a vote of the Australian people, by which vote section 61 of our Constitution empowered the executive to undertake military action when and as required by the new nation-state, Australia, now well and truly into its second century of existence. I would encourage all colleagues, in considering this bill, to give due consideration to the wellbeing of our nation's interests and to our personnel's interests. This bill does not deserve the support of the Senate, and I am pleased to note that the Labor Party, the other party of government, also opposes this bill.

12:13 pm

Photo of Janet RiceJanet Rice (Victoria, Australian Greens) Share this | | Hansard source

[by video link] The Greens have brought on this bill, the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020, today, while the situation in Afghanistan is raw and tragic—while, in Kabul, we have seen days of chaos on the ground. While some very fortunate people have been able to be flown to safety—and we are grateful that that has been the case—we mourn the loss of life that has occurred and will occur. As the final US troops withdraw tomorrow, we've got people being killed on the ground by the Taliban and by terrorist bombings of ISIS-K and by US drone strikes. We have brought on this bill today because it's important—while we are reflecting on this tragedy and while it is raw—to ask ourselves: could we, should we, have done something differently so that we wouldn't have ended up as we have today? If we had had parliamentary oversight of sending Australians off to war as we did 20 years ago, would we have made a different decision?

I've listened to the debate this morning, and the arguments that have been put forward against this basically seem to boil down to three things. One is that there's a security justification: we can't have the parliamentary debate because we would have to share information that the public can't know—that would be problematic to share. Frankly, I don't buy this at all. If you are making the serious decision to send Australians off to war then you need to be able to justify it to the public to say: 'Australians are going to die. People are dying. We are going to be at war.' There needs to be the ability to justify that to the public in no uncertain terms.

The second reason seemed to be that if under the emergency provisions that are in this legislation a decision were made to send troops off to war and then the parliament decided against that later on we'd be in a tricky situation to withdraw. I don't buy that either, because if parliament made that decision it would mean that there was a huge amount of controversy over that decision and we would have had troops going off to war very uncertain as to whether it was an appropriate war to be part of.

Thirdly, in Senator Abetz's contribution he was basically saying that we need to have the ability, the nimbleness, to go off to war. Again, this bill contains emergency provisions that give the executive the ability to make that decision, if indeed that is an appropriate decision to make.

I think it's important to be discussing this today and reflecting upon those two decades in Afghanistan. It has been two decades since we joined the United States. The scenes across Afghanistan show the fundamental failures of the approach that we had in making that decision. When Australia first joined the US in invading Afghanistan then Prime Minister John Howard stated:

We should be clear about our aims in this operation. The immediate goal is to seek out and destroy al Qaeda and ensure that Afghanistan can never again serve as a base from which terrorists can operate.

Twenty years on it seems that the words of my former colleague Scott Ludlam were all too prescient. In 2011 he said:

The mission fulfilled the political aim of showing solidarity with United States, but if you measure progress against the goal of stabilising a country and a region, then the mission has failed.

And that's even more starkly the case now a decade on.

The evidence is very strong that the last 20 years have made the world less safe, that there is more terrorism, that al-Qaeda is stronger. You cannot invade your way to peace. You cannot bomb your way to justice. As Nathan Sales, a former US state department coordinator for counterterrorism, has said recently:

…the terrorism risk to the United States is going to get dramatically worse…it is virtually certain that al-Qaeda will reestablish a safe haven in Afghanistan and use it to plot terrorism against the United States and others.

Tragically for too many years Afghanistan has been a graveyard for Afghans all too often killed by white invaders, and that's the sad reality of the situation. Rather than being a graveyard for empires, it has been a graveyard for Afghans. Ministers who wanted to be there for the photo-ops with the international handshakes and fighter jets—it's not the ministers who order the invasions that dig the graves, particularly for the thousands of civilians who have been killed.

Our support for the US invasion has also tarnished our approach to whistleblowers. We have spoken out for a long time in support of Julian Assange, who has been unjustly jailed for making public the secrets of war and war crimes in Afghanistan and elsewhere. Fundamentally, we reiterate our call for Australia to rethink our relationship with the US. The presidency of Donald Trump highlighted the dangers and the risks to Australia of outsourcing our decision-making to another country with a history of military follies.

Here inside Australia we must rethink our asylum seeker policies as well. We're now providing airlifts to some from Afghanistan, but we've spent decades locking up those who sought to come to Australia, often from Afghanistan. It's worth remembering that those on board the Tampa 20 years ago were Afghan asylum seekers fleeing the Taliban. That contrast between our invasion and our treatment of those seeking asylum from Afghanistan highlights the fundamental contradictions of Australia's approach. It was a decision made by white ministers to invade Afghanistan, to arrogantly and recklessly pretend that we could create peace through war and to lock people up when they tried to flee to Australia.

We think that a parliamentary debate, as is outlined in this bill, would have led to important scrutiny and accountability. It's sorely lacking and desperately needed. It's too late for the people of Afghanistan on the ground that we are having this debate today, but we must make sure that we do not make the same mistakes again. Part of ensuring this is this bill, which would make it far more difficult to make instant decisions to send Australians off to war. Thank you.

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

It being 12.20, the time allocated for the debate has expired.