Senator PAYNE (New South Wales) (5.41 p.m.)--I am pleased to have the opportunity to participate in this discussion in general business this afternoon in relation to the proposed amendment of the Defence Act 1903 to repeal section 50(c) and substitute that with a new section as suggested by the Australian Democrats--by Senator Bartlett and Senator Stott Despoja specifically.

The Defence Amendment (Parliamentary approval for Australian involvement in overseas conflicts) Bill 2003 [2004], as has been discussed already today, relates to the provision for parliamentary approval of overseas service by members of the Defence Force. I have had the opportunity during the afternoon to listen to some of the contributions by other senators. As Senator Bartlett just alluded to in his concluding remarks, the bill arose some time ago now. It pertained to the conflict in Iraq, so it has been around for well in excess of 18 months now. I think it is important to acknowledge that, in the deployment of Australian troops to Iraq in the first instance, the parliament and many of the senators in this place, as well as the members in the other chamber, did have an opportunity to participate in a parliamentary debate on that matter. I note as an aside that it was held at the time of the New South Wales general election and some of the members in the other place chose to campaign for independent candidates in state seats rather than perform their federal parliamentary responsibilities in their own chamber in the House of Representatives. They now make a great deal of noise about other matters in an inquiry that is happening simultaneously with the Senate sitting this afternoon. It is an interesting question of the priorities of some of those members of the House.

In terms of the simple principle that Senator Bartlett says is presented by this bill, he contends, and the bill in fact suggests, that what should be required in this process is for both houses of parliament to agree on the deployment of Australian Defence Force troops in overseas conflicts. What I did not hear Senator Bartlett say--and it may be that I was not in the chamber at the time--was what, now that we come to the situation post 30 June when the government will have control of both chambers of this parliament, is the next suggestion that will come forward from those who think this is a good idea. What is the suggested extent of engagement that the parliament should have in providing approval or otherwise? It is for those and other reasons that I and other members of the government are unable to support this bill.

For example, in our involvement in Afghanistan--and, along with other colleagues, I had the honour of visiting those participating in that action in a number of locations in the Middle East in 2002--predeployment, as senators will remember, was pivotal to the effectiveness of our engagement there. When push comes to shove on this particular proposal, would there then be a suggestion that the parliament should be engaged in deciding how predeployment should be taken up? Where is the line actually drawn? That is not clear to me from either the bill or the debate today.

As I heard Senator Hogg allude to earlier in the afternoon, the importance of the rules of engagement as adopted by the Australian Defence Force in all their activities such as those under discussion today are absolutely fundamental. I had the honour and the opportunity in Bishkek, Kyrgyzstan, I specifically recall, of discussing with legal professionals in the Australian Defence Force their work on the rules of engagement for the particular activities of the RAAF at that time, in air-to-air refuelling and other things. I know what level of importance, what priority and what seriousness is placed on these matters. Is it suggested also that there might be parliamentary involvement in that process? I have a greater regard and respect for the Australian Defence Force doing those things with professionals, expertise and a regard for operational security than to even contemplate that that should be part of the processes of the parliament.

If we look at the current approval procedures for the commitment of the ADF to international operations, what underpins our constitutional system? Hopefully, as members of this chamber, we are all aware that it is the doctrines of responsible government and the separation of powers which provide the framework within which the parliament, the executive government and the judiciary perform their functions--different but perhaps not completely separate and discrete functions.

Both the parliament and the judiciary, in particular, have long recognised that it is the executive government which in fact has discretion in relation to the deployment of the ADF. Of course, as a matter of practice parliament is kept informed of those sorts of decisions. It may be informed in a number of ways. It may be the sort of debate which accompanied this particular deployment in relation to Iraq that I alluded to earlier. It may be the sort of monitoring--and I am sure some of the officers questioned relentlessly at the time would regard it as a forensic examination--that takes place through the Senate estimates process, which occurs simultaneously with our deployments wherever and whenever they are being held. We know that the march of estimates is itself relentless and provides the opportunity for senators to participate very specifically and actively in the questioning process in relation to overseas deployments and the role of the ADF. It is part of informing and keeping the parliament informed of our decisions.

It is also important to emphasise that decisions to deploy troops into an area of conflict are not decisions that would ever be taken lightly. I remember engaging on this point with significant numbers of constituents in relation to Iraq, in particular, and some making the suggestion that this was a glib decision of government. I absolutely reject that contention if it is being made now, as I have done when it has been made in the past and will do again if it is made in the future. These are very important decisions and they are not taken lightly. All of the agencies and the ministers which are relevant to the decision-making process, whether in relation to the National Security Committee or other portfolio areas, are fully involved in that process. As I said earlier in my remarks, the current parliamentary processes do allow for debate on these decisions--and many members of this chamber have participated in those discussions--but it is the government's view and mine that, ultimately, it should be the decision of executive government whether to commit Australian forces on operations overseas.

The operational considerations that need to be borne in mind can also impact quite seriously on the possible imposition of parliamentary approval processes for the commitment of Australian forces internationally. In the current arrangement we have an ability for the government to respond to emerging threats both quickly and decisively. That is an approach which has served Australia well in the past, and indeed continues to do so. We are all aware that in the last, say, four to five years the current threat environment has changed comprehensively, not just in this region but internationally. We are acutely aware of the tragedies in a number of places which have led to changes in that threat environment.

It is essential that a government is able to maintain the flexibility to deal with its armed forces in the way the armed forces and the government see as appropriate and is not subject to the sorts of issues I raised earlier: the extent, for example, of how much a parliament--this parliament--wants to be involved in things like predeployment and rules of engagement. It is not outside the realms of possibility--in fact, I am sure it is closer to the norm than otherwise--that the specific details of deployments may indeed be classified for operational security reasons. I know also from experience in the Senate estimates process, a very public process of this chamber, that when matters are classified for operational reasons it is a source of some frustration sometimes to senators participating in that process, but it is very important to ensure the safety and effectiveness and, ultimately, success of our activities that that is the case. When you try to bring this procedure onto the floor of the parliament, what happens to those issues? What happens to questions about security classifications and the operational impact of the debate occurring within, for example, this chamber?

If we look at the bill, its propositions include the fact that, in an emergency, the role of the Governor-General would be that the Governor-General may require Defence Force personnel to declare by proclamation that an emergency exists which requires service beyond the territorial limits of Australia of members of the Defence Force and such service may be required in accordance with that proclamation. So it is a proclamation for the Governor-General.

It goes on to say, in clause 50C(4):

the preceding subsection--

It goes on to make other procedural arrangements. It is interesting to contemplate what sort of position the Governor-General would find themself in in that circumstance. Would it be in accord with the premises of our constitutional system of government? The bill does not indicate to us whether it is suggested that the Governor-General is acting on the advice of executive government or whether the Governor-General has to take counsel from other parliamentary representatives--for example, from the opposition or minor parties and whatever Independents might wish to participate in that decision making. I go back to the question of what level of involvement it is envisaged the parliament would have. It is not clear to me from this bill, and I do not think it provides us with sufficient clarity to form those views and support it.

There is also a very valid argument that putting the Governor-General in a position of that nature--and all of the speakers this afternoon to differing degrees have indicated that these are very contentious and important decisions, no matter when and by whom they are made--could have a very deleterious effect in terms of politicising the office. This is an issue on which Senator Bartlett, for example, and I might meet in the middle in broad small 'r' republican terms, but in the nature of this debate and this discussion I think that is something we have to bear in mind very seriously. In my view the process, because of the lack of clarity in this proposal, would only be a confusing one and ultimately may well result in a situation of deadlock.

It is entirely possible that the moment that the process needed to be invoked--if the act were amended--would be a time of great danger for our nation. I think it is unacceptable to suggest that our decision-making processes should be paralysed and put at peril in such a way. At the end of the day--a phrase I prefer not to use; if Don Watson could hear me now he would probably be absolutely devastated by that--the executive branch of government is just that: the executive branch of government. It is elected by the people to make hard decisions. That is what it does. It is answerable to the people for those decisions. What answer did the people give this government in 2004 in relation to the exact example upon which this bill is based? The answer was to re-elect the government with an increased majority. Let us place that on the record for consideration.

I was interested in some of Senator Allison's observations at the beginning of the debate this afternoon. Given that this has some constitutional overtones, much in the way that opponents of constitutional change list 20, or as many they can possibly find, obscure republics which they believe to be dysfunctional as proof of their point that Australia should not make any change to its constitutional arrangements, I found Senator Allison providing the chamber with a list of countries which apparently were regarded in a negative fashion because they also did not require parliamentary approval for military deployment abroad.

Not usually joining in such an approach to debate, I thought that in the spirit of this afternoon's discussion I might and I had a quick look at what the country members of NATO do in relation to parliamentary approval for military deployment abroad. I will leave it to those listening and those reading to decide whether these countries fall into the category of obscure republics that you cannot trust. Countries like Belgium, Canada, Denmark and France do not require any parliamentary approval for the deployment of military operations abroad.

In a very short period of time, on approximately 30 June, the government will find itself enjoying a majority in both houses of this parliament. That means that Senator Bartlett's wish for the approval of two chambers before any military deployment on an international basis is made will be granted, but I am sure not in the manner in which Senator Bartlett has suggested in his bill. In practical terms, where does this actually take us right here and right now? My suggestion is that it does not take us very far.

Finally, in the last couple of minutes remaining to me, I want to briefly make a reference to Iraq post conflict. There are many views around this nation and internationally on whether the war was right or wrong. But let us talk about the post conflict election for a moment. There was a 72 per cent turnout, which puts the US election results in November of 2004 of 60.7 per cent to shame.