Senator REYNOLDS (Western Australia) (10:45): There is no greater responsibility for any elected government than to keep the nation safe and secure and to make the decision to utilise military personnel, both domestically and overseas. Under our Constitution this is clearly the responsibility of the executive, who are elected by the Australian voters and accountable to them through the parliament. There is no requirement in the Constitution or defence legislation for parliamentary involvement in most aspects of declaring war and deploying our service personnel. Additionally, our military forces are accountable by longstanding convention to the executive through the Governor-General and not directly to the parliament.

Contemporary practice, however, is that decisions to go to war or to deploy troops are matters for the Prime Minister and the cabinet and do not involve the Governor-General or the federal executive council. I firmly believe that it is neither within the spirit of our Constitution nor the intent of our founding fathers that executive government would effectively abrogate their responsibility for deploying Australia defence forces to the parliament. I have willingly served under both Labor and coalition governments and I understood and accepted that the government of the day was responsible for making decisions that impacted on my service and possibly my life.

The Commonwealth Constitution is the birth certificate of our nation and rightly belongs to the Australian people. It has operated successfully for over 100 years and provides for very clear separation of power within Australia. I am a great admirer of our Constitution. I believe much of its strength actually lies in its simplicity. I believe the comparisons that have been made with other national constitutions are in these circumstances disingenuous as I believe you cannot examine single issues such as this in isolation of the whole of other constitutional documents and the history under which they were created. Unlike rule books of sporting clubs, for example, our constitutional rules cannot be amended at the behest of members of parliament of the day. Given the significance of this issue, the issue that is before us today should not be a matter for this chamber. Those opposite should seek a constitutional change through the people of Australia, not legislative change.

Parliament already does play a significant role in shaping and influencing the commitment of forces overseas. The Prime Minister, by convention, makes a detailed statement to the parliament and relevant ministers provide regular reports to Australians through the parliament. Indeed, a committee of this very Senate, the Senate Foreign Affairs, Defence and Trade Legislation Committee, in 2010 published a report on similar legislation to that before us today. It concluded that it was not a credible piece of legislation. I will say that again. Our own committee concluded that it was not a credible piece of legislation.

Some of the reasons it gave for this legislation not to proceed included concerns about disclosure of sensitive or classified information, a lack of responsiveness and a lack of clarity about when the bill would apply. These concerns are absolutely still valid today. In fact, I believe that in the current security environment, the need for strong executive power for the use of military force is more necessary than ever, as is the role of the National Security Committee of cabinet. Threats can no longer be easily characterised. Even 50 years ago it was easier to determine who our likely enemy was and what their intentions were. The armies of state dominated our security environment. Today that is no longer the case. Stateless enemies and terrorists using asymmetric tactics are an ever-increasing threat. These threats demand the capacity to respond quickly, flexibly and sometimes without the knowledge of the general public. All of these criteria would be all but impossible if the executive were required to gain the approval of parliament every time it was to commit military forces. That is because this legislation would require a public proclamation to be made.

Despite the assertions of those opposite to the contrary, I know from experience that there is a very high possibility that if these requirements were made public they would put Australian service men and women in danger in the performance of their duties. In fact, we may as well invite our enemies into the cabinet room for the briefing. And it is not just me who thinks this way. Again I quote the Senate Standing Committee on Foreign Affairs, Defence and Trade’s report on this issue.

It reads:

Much of the information under consideration would be classified, for example risks to personnel, Defence or AFP assets, their strength and location, their force readiness, as well as the level of commitment and capabilities of likely allies …

Clearly this information should never be disclosed. We may as well put out a press release to telegraph to our enemies what our intentions are and what we are doing.

We also heard this week and again from previous speakers this morning that we should not rush into the decision to commit resources or equipment to any one side in Iraq. I believe this is the real reason this legislation has been resurrected today. The decision to deploy members of the Australian defence forces has consistently been regarded as a fundamental decision for the executive of the day, and they are elected by Australians to do so. Decisions made by the government can always be tested on the floor of this chamber in line with the parliament’s ability to consider and debate important matters of state. But this should not ever extend to the ability to decide where, when and whether we deploy our defence forces. Any such proposed change should rightly be an issue for the Australian people by constitutional change by referendum, not through legislation from a party that is opposed to the actions of the government of the day.