This afternoon I had the honour of addressing Armidale's "March in March" community gathering, on the subjects of asylum seekers and war powers. My notes follow.
Speech notes for Armidale Rural Australians for Refugees Vigil,
Central Park, Armidale
Saturday 25 May 2017
Foreign Minister Julie Bishop is fond of extolling the virtues of a “rules-based international order”. She is particularly inclined to do that when other countries do things that don’t suit us, such as China building military installations on disputed reefs in the South China Sea and claiming sovereignty over them.
She is right in principle of course. We all have an interest in a rules-based international order. It’s either that or the law of the jungle. For a country such as Australia, the rules-based international order suits us very well. We are not powerful enough to get our way by force of arms or through economic power, but we are important enough to be listened to when the rules are being made, and we have a creditable track record in the development of international treaties and conventions that help to make the world a better and safer place.
The problem is in recent years our governments have become very selective about the rules they abide by. The ones I want to talk about this afternoon are those which bear on the treatment of refugees and asylum seekers, and those which bear on how we go to war.
In our treatment of refugees and asylum seekers we routinely ignore the provisions of the Refugee Convention which we willingly and proudly helped to negotiate in 1951. I am sure you are all familiar with the many ways we flout the provisions of the Convention: describing and treating those who arrive by sea as “illegal”; mandatory detention rather than a short period of detention to conduct health and identity checks; interminable delays in processing asylum claims; denial of access to the Australian courts; transfers to third countries with associated claims that the asylum seekers are not our responsibility; failing to make adequate provision for the health, safety and welfare of people in detention; and more recently, refoulement – returning refugees to their countries of origin without due regard to the dangers they may face.
You may be less familiar with the disturbing behaviour our Government has shown in relation to our obligations under the Convention on the Safety of Life at Sea (SOLAS), as recounted in Tony Kevin’s excellent 2012 book Reluctant Rescuers, and I would argue that our placing turned back asylum seekers in a lifeboat under the control of someone with no seamanship or navigation qualifications is in violation of that convention.
In addition, some of the turn-back operations have seen Australian military vessels violate Indonesian territorial waters, in violation of the U Convention on the Law of the Sea, and of course our interception of boats on the high seas is highly questionable in relation to that same Convention.
In considering our approach to the refugee issue we must also consider the contribution we make, through our military actions, to the fracturing of societies and the displacement of people. We go to war too readily, and we go to war too easily. Under the Australian Constitution the power to deploy the Australian Defence Force into international armed conflict rests with the Governor-General, acting on the advice of the Prime Minister and the Executive Council. There is no requirement for Parliamentary involvement in the decision-making process.
This means that the power is effectively in the hands of the Prime Minister; as former Prime Minister Malcolm Fraser wrote, strong-willed Prime Ministers always get their way in Cabinet.
In 2003 John Howard took Australia into an illegal invasion of Iraq. Under the United Nations Convention, there are only two grounds for military action against another state: authorisation by the UN Security Council, or an immediate threat to the nation’s territory. Neither of those conditions was satisfied in 2003.
To make matters worse, the Howard Government sent the troops to war without obtaining the authorisation of the Governor-General, the only person who has the Constitutional power to authorise a deployment. Instead, an order was given by the Defence Minister under Section 8 of the Defence Act, a section which merely gives the Minister control of the administration of the Department and the Defence Force. It is not a power to make war.
In so doing, the Howard Government placed the soldiers, sailors and airmen and –women at risk. In the event of a claim that any of them had committed an illegal act under the Laws of Armed Conflict, the first question that would arise in front of a tribunal would be whether the individuals concerned were lawfully in the theatre of conflict, and without the Governor-General’s authorisation they could not argue that they were.
We deserve better than this. A decision as great as going to war - the biggest decision a country can make, and one on which the fate of millions of people will depend - must be subject to the most exhaustive scrutiny. Australia’s Parliament should be a vital part of that process and not simply a rubber stamp. Governments proposing a particular military deployment should be required to explain to Parliament why it is proposed, what it will achieve, and how the predictable costs will be met, including looking after its victims.
And if a war is worth fighting, it is worth the trouble to look after the victims, as we did after World War II, to the enormous enrichment of our society.
So by all means let us have a rules-based international order. But to show that we are serious about that, let us demand of our governments that they obey all of the rules, all of the time.