Second reading
29 March 2023
I also rise to make a contribution relating to the Defence Amendment (Parliamentary Approval of Overseas Service) Bill 2020, which is before the Senate this morning. As many in this place have articulated, both the government and the opposition are certainly not supporting this bill.
Those who have been in and around or observing the Senate for an extended period of time would hardly be surprised to hear a Labor senator, either in opposition or in government, say such words in response to a bill of this nature. This is because the bill is hardly novel to this chamber. In fact, I think it’s important that we have a bit of a look at the history. It’s become almost a tradition for some to introduce such a bill in this chamber.
In many respects the bill that we have before us is a carbon copy of a bill that was introduced by former senator Colin Mason, of the Australian Democrats, back in 1985. It is a carbon copy of a bill that was introduced by Senator McLean, also of the Democrats, in 1998. It is the same bill that was brought to the chamber again in 1993, in 1996 and in 2003 by Senators Bartlett and Stott Despoja and in 2008 by Senator Ludlam. So, it’s certainly one that has made the rounds here in the Senate.
But the decision to send Australian Defence Force personnel into harm’s way is not a decision that’s ever taken lightly. As we heard in contributions from my colleague Senator Green and those opposite, we have had a privilege to share part of the ADF’s program here in Parliament House through the parliamentary program that’s been offered through the Department of Defence. I myself have seen firsthand the dedication of our service men and women of the Royal Australian Navy, the Australian Army and the Royal Australian Air Force and the role they have in advancing our national interests and defending our sovereignty.
Just last year I travelled to the Rim of the Pacific Exercise over in Hawaii. That was consistent with previous interactions with our defence personnel. I was struck by the patriotism shown when I and other members of the parliamentary program were there. It’s fair to say that the ADF personnel were very generous to the parliamentarians who participated in the exercise, and I want to thank them again for their time and dedication to Australia and its peoples. This dedication is admirable, and it should never be tested without deep consideration. Although I disagree with the provisions of the bill, when it comes to the rationale behind it I can’t fault the moral conviction of those who seek to advance it. Here in parliament is certainly a place to have a debate about going to war. We heard from Senator Birmingham. I think it is fair that the parliament should have the debate. But the decision to send our troops to war should rest with the government of the day. Indeed, I appreciate the significance of the decision. Sending Australians to war is not a decision that is taken lightly, because of the appreciation we have for our ADF personnel.
But it’s also important to note that in the Westminster system of government, as we have here in Australia, it is within the purview of the executive to make decisions regarding the commitment of forces to engagements, be they within our borders or overseas. It is that way because, the way our Constitution is written, the Governor-General, as a representative of His Majesty the King, Commander in Chief of the Australian Defence Force, is constitutionally vested with this responsibility. Such is the effect of section 61 of the Australian Constitution. Acting exclusively on the advice of the Prime Minister and other responsible ministers of the government, the Governor-General gives effect to the decisions of the government of the day, which is responsible to the parliament here in the Senate and in the House of Representatives and through our parliamentary processes, which obviously extend to the Australian people.
The Albanese government supports the continuation of current arrangements that govern the deployment of the Australian Defence Force to overseas engagements. We do so because it is essential that decisions of this type are able to be taken swiftly in response to international events. Indeed, we have seen in recent years, with open conflict once more on the European continent, how important it is that there exists a legal framework to support the sudden defence of the national interest in the manner that only the Australian Defence Force can. But whilst this may be so, it would be a mistake to suggest that there is not a role for the parliament at all. On this side of the chamber we also support the notion that such decisions of the executive should be made with the appropriate level of parliamentary and public scrutiny, and it is only with such transparency that the Australian community can have faith that these decisions are made on their behalf and in keeping with their expectations.
It is because of this commitment that the Australian Labor Party took to the election a policy to establish an inquiry into our armed-conflict decision-making.
This is a policy that has since been acted upon, with the Deputy Prime Minister and the Minister for Defence, Richard Marles, making reference to the Joint Standing Committee on Foreign Affairs, Defence and Trade on 28 September last year. I’m a member of this committee, and I note that it has so far received 113 submissions. I also note that the committee is yet to finalise its report to the parliament. It is disappointing that this bill has been brought on for debate before that report has been considered by or tabled in the parliament. I say ‘disappointing’ because, despite the many iterations of this bill and the frequency with which it appears before the chamber, it retains many, I think, deficiencies that have previously been identified through inquiries and debates. Because of the seriousness of the matters this bill would seek to amend, it is of the utmost importance that this legislation is considered deeply and comprehensively. When dealing with matters that will put Australian lives on the line, nothing should be left to chance. Successive committee inquiries have highlighted that the provisions of this and very similar earlier bills leave too much to chance and fail to address the concerns of unintended consequences arising should its passage through the parliament be allowed.
In its 2021 report on this bill, the Senate Standing Committee on Foreign Affairs, Defence and Trade stated that it was left with concerns about how certain provisions of this bill would operate in practice and about unintended or unforeseen consequences. The report stated that concerns exist about the disclosure of classified or sensitive information that was necessary to inform decision-making would be made available for parliamentary debate without compromising Australia or its allies. It also stated that the bill would reduce flexibility needed in Australia’s complex and uncertain strategic environment, and I think it’s important to note that our environment has only become more complex and uncertain since this report was produced. Lastly and appropriately, the committee noted that the geographical limitations that the bill would place on parliamentary approval of overseas service did not account for the increasingly important conflict that occurs in space and cyberspace.
The ALP has always had concerns with previous iterations of this bill placing constraints on the government’s capacity and its ability to respond to situations requiring urgency. The urgency required in these situations—situations that we of course hope never, never eventuate—is necessary for the function of committing Australian forces to engagements to sit within the executive. The reasons why the government opposes the bill are consistent with the reasons that Labor has opposed similar bills, dating right back to 1985, and that is another reason why it is disappointing that the bill has come before the chamber today, instead of the Joint Standing Committee on Foreign Affairs and Trade having finalised its report. I would urge senators, once that report is tabled, to obviously have another discussion here in this place and make a contribution and get involved in the processes with that joint standing committee’s inquiry.
The facts and arguments upon which the government has formed its view of this legislation have not changed—and I’m sure the same is true of other parties around the chamber—except noting that our strategic environment is even more fraught and uncertain than when we previously considered a similar bill. The bill does not address the concerns that have been raised with previous iterations; instead, it appears that proponents of the bill have just hoped that maybe the Senate has changed its mind, or the numbers have shifted. I really want to applaud the moral convictions of those who have put this bill—and Senator Steele-John is rightly very passionate about these issues of concern, and, quite frankly, this is the appropriate place to have these debates. But I really would urge Senator Steele-John to reconsider the consequences of maybe delaying decisions and the role the executive has while ensuring that there is still accountability in this place. The parliament has to have accountability for the executive, regardless of which side of politics is in power. I know there are many convictions that we probably share, but I really do feel that what is important here is ensuring that the government of the day has the right amount of information, has the right time and has the ability to support our men and women in uniform when the time comes.
But, before I conclude, I make the point too that it is important that we are mindful that the functions of the executive remain as they have been. No decision made by government is as consequential or important as the decision to deploy the Australian Defence Force into combat, but we must also consider that, in what may be a rapidly changing security situation, the decision to not deploy the ADF also has consequences, as does any delay in decisions being made. Any proposal to alter that decision-making process and who is responsible for it must be subject to scrutiny. This chamber has gone through that scrutiny process on bills many times before. Any changes to our national security arrangements must be deeply considered.
As our concerns about unforeseen legal and operational consequences of the bill have not been addressed, the government is not in a position to support this bill. But I do look forward to the report from the Joint Standing Committee on Foreign Affairs, Defence and Trade being finalised after proper consideration of the 113 submissions before it.
