Overseas Deployment Of Australian Forces

John Kilcullen


Purpose

The purpose of this paper is to recommend that an ALP government should legislate to require that overseas deployment of Australian armed forces must in future have the prior approval of the Australian Parliament. Suitable wording for inclusion in a policy statement is suggested at the end.

Meaning of the proposal

There is a draft bill in the Senate by the Democrats which the ALP could support and/or modify: http://parlinfoweb.aph.gov.au/piweb/view_document.aspx?ID=1307&TABLE=BILLS. (Acknowledgement of the Democrat’s lead in this matter would do the ALP no harm politically.) [The Democrat bill is no longer accessible. Its ancestor is the 1973 War Powers Resolution of the United States Congress.]

This draft bill makes provision for military emergencies. It says that “the Governor-General may by proclamation declare that an emergency exists requiring the service beyond the territorial limits of Australia of members of the Defence Force”, and then the armed forces may be deployed. If there is such a declaration of emergency Parliament must meet within two days to consider the deployment. 

Even in most emergencies, it will take more time to send forces overseas than for Parliament to meet and decide.

The bill also makes exceptions for small matters that might be held to be deployments: service people temporarily attached to the forces of other countries, or as members of diplomatic or consular missions, service people on Australian vessels or aircraft not engaged in hostilities or in operations during which hostilities are not likely to occur; people overseas for education or training or procurement of equipment or stores. These would not require prior Parliamentary approval. The details are of course amendable.

The present situation

At present Australian forces can be deployed overseas simply by government decision, without Parliamentary approval. There may be a Parliamentary debate, but the outcome cannot bind the government.

The legal basis on which the government (in practice the Prime Minister) commits Australia to military action is the royal prerogative, i.e. the residuum of the original powers of the medieval monarchy not yet superseded by Parliamentary legislation. (See http://en.wikipedia.org/wiki/Royal_prerogative.) The prerogative can be restricted simply by an act of Parliament, as proposed here. A constitutional amendment is not needed.

In Britain and other countries with a Parliamentary system like ours the situation is the same. In Britain the government’s decision to go to war has led to questioning of the royal prerogative. See http://politics.guardian.co.uk/foreignaffairs/story/0,11538,893691,00.html http://www.guardian.co.uk/guardianpolitics/story/0,3605,934262,00.html and http://www.inlap.freeuk.com/royalprerogative.htm

The framers of the US constitution attempted to make congressional approval necessary for war by providing that declarations of war are made by Congress (see US Constitution,  art. 1, section 8, clause 11, http://www.law.emory.edu/FEDERAL/usconst/art-1.html#sec-8.) However, this provision has become a dead letter, since US forces have gone to war many times [some estimate 125 times] without the formality of a declaration of war. See http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/warandtreaty.htm. The legislation we propose could not be evaded in this way because the concept of overseas deployment is not a formality but matter of fact: once a military force leaves Australia it is clearly an overseas deployment, and Parliamentary approval would be needed.

Kinds and circumstances of deployment

At various times Australian governments have sent forces overseas without any serious division in the community. This is true, for example, of a number of peace-keeping deployments (Cambodia, Rwanda, Bougainville, and many others – see http://www.awm.gov.au/atwar/peacekeeping.htm). It is also true of the “peace-making” deployment to East Timor (under the auspices of the UN, at the invitation of the Indonesian government). The two exceptions are the Vietnam and Iraq wars. The intention of this proposal is to make it much less likely in future that Australian forces will be sent overseas without general community support.

Political implications of this proposal

Outside of emergencies (for which the draft Bill provides), if the government did not control both houses, the government and the main opposition party would negotiate the terms of approval (e.g. period of deployment, rules of engagement, relations with allies, an “exit strategy”). The government would have to show the opposition its intelligence assessments, to win its support. Intelligence agencies and other public servants would know that their advice would be scrutinised not only by government but also by opposition, which would counter the temptation to give advice in accordance with the government’s presumed views. The government would have to explore alternatives suggested by the opposition. Most of this discussion would necessarily take place in private, but the public would in general accept the outcome in the belief that if both major parties are satisfied that the deployment is needed, then it probably is.

The proposal would not give the minor parties the balance of power, unless the two major parties disagreed. If the major parties agreed, then opposition from the minor parties would be overridden. It is the ALP that would have the balance of power: under any circumstances likely to occur, an ALP government will never want to deploy Australian forces overseas against the opposition of all the other parties, and the Democrats and Greens will never support a deployment opposed by the ALP. The contested deployments have been made by Liberal-National Party governments.

The proposal is that deployment should need the approval of both houses of Parliament. To require approval only from the House of Representatives (normally controlled by the government) would be not be an improvement on the present situation, in which a government can go to war whenever it chooses. Legislation needs the approval of both houses, so the present proposal is in effect that there should be legislation requiring that each future deployment must have (equivalently) specific legislative authority. The Senate should not be cut out of this process. If there were a disagreement between the houses that would be a pretty clear indication that the deployment would not have general community support. In opposing unwise deployments the ALP can expect to have the support of the minor parties in the Senate. An ALP government proposing an overseas deployment could expect the support of the “conservatives” and probably of the minor parties also.

What would happen if Australia took a turn to the right and the minor parties in the Senate were not the Democrats and Greens, but “Fascists”? Or if someday the “conservative” party controls both houses? On either of these hypotheses a “conservative” government that wanted an overseas deployment might get Parliamentary approval in the face of opposition from the ALP. But this would be no worse than the present situation, in which a “conservative” government does not need to consult Parliament at all. In comparison with the present situation, the situation under this proposal would be no worse in the worst circumstances and in other circumstances clearly better.

By featuring this proposal in the coming election campaign, the ALP would be able to say what needs to be said about the Howard government’s past conduct, but with a constructive focus on the future. Whatever electors come to think about the Iraq war and its outcome, most will support the idea that in future Australian forces should not be deployed overseas on a Prime Minister’s sole decision.

Political responsibility

Under this proposal the Government would still have the initiative in proposing deployment. Authorisation to deploy does not require actual engagement or forbid recall, matters which would still be for government to determine. The conduct of operations would also still be a government responsibility. If the deployment went wrong and electors came to feel in retrospect that it should never have been made, the opposition would have to accept political blame as well as the government, but it would not be a bad thing if the opposition had to accept responsibility too. Both parties would have to say, “We thought we were doing the right thing, but now it seems otherwise: What can we do to fix the situation?”—leading to a more constructive political debate.

It is more important to be able to prevent wrong deployments than to punish someone for it afterwards. Governments and government officials (ministers, public servants, local police) have discretion in many things, but in general our political system does not operate on the principle that government should have a free hand subject to political penalties afterwards. The government has to have more or less specific legislative authority for many of its proposed actions. (For example, its economic policies require the budget legislation.) Discretion in matters of war should be left to Parliament, not to the Prime Minister and cabinet.

Letting the government do what it wants but inflicting political punishment afterwards if things go wrong is inappropriate when the evil done by wrong decisions may be irreversible, such as the death of service people and civilians and long-term damage to Australia’s relationship with people in other countries. Before Australia goes to war both the major parties, at least, should be satisfied that it is the right thing to do.

Implication for defence policy

Recent decisions about defence capabilities were reported in the press in a way that suggested a link to plans for further overseas deployments with US forces (for example the headline in The Australian, 04/10/03, “$25bn Defence Fit Out For US Service”). Perhaps in reaction against this ALP politicians [e.g. Latham] have spoken of “directing our military capabilities primarily to the Defence of Australia, its territories and national interests, rather than to expeditionary forces overseas”. This is a false contrast:

 Any Australian military force capable of defending the remote parts of Australia will also be capable of expeditionary deployment overseas.

*   Such deployment might on occasion be a way of defending Australian national interests.

Instead an ALP government should make sure that Australian forces have a capacity for deployments both on the Australian continent and overseas, and rely on the requirement for Parliamentary approval of overseas deployments to put a restraint on future “conservative” governments’ desire to join in overseas actions with the USA.

Suggested wording

Overseas military deployments. An ALP government will legislate to require that in future Parliamentary approval will be required for overseas deployment of Australian military forces (except for emergencies, and except for postings of certain kinds not likely to lead to combat). The purpose of this legislation is to make it more difficult for a government to involve Australia in war without bi-partisan or multi-party support. We believe that, in view of the risks to human life – the lives of Australians and others – and to Australia’s standing in the world, a government should be required to justify overseas military deployment to the satisfaction of Parliament.

[John Kilcullen
May 2004]

[Addendum 2007

In Britain recently the Prime Minister, Gordon Brown, announced that the British government would not in future exercise without Parliamentary approval the prerogative powers to go to war and to make treaties. See Gordon Brown’s  “Constitutional Reform statement”, 3 July 2007, http://www.number-10.gov.uk/output/Page12274.asp and Green Paper, “The Governance of Britain”, http://www.pm.gov.uk/files/pdf/TGoB_print.pdf, p. 18.  ]

Addendum 2011

The argument that the Australian Parliament should enact something like the US Congress “War powers resolution” of 1973 requiring Parliamentary approval for overseas deployments has been supported by a number of people. See  GreensGeorge Williams, General LeahyMelissa Parke. [In the US some contend that the "War powers resolution" violates the constitutional rights of the President as Commander-in-Chief. Our constitution would not support this argument.]

Addendum 2014: Some links

Parliamentary Library, "Parliamentary involvement in declaring war and deploying forces overseas"
Josh Rogin, "After Steven Sotloff Murder, Congress Demands a Vote on Obama’s ISIS War"
Mickey Edwards and David Skaggs, "The commander in chief should not also be the 'decider in chief'"
Sukrit Sabhlok, "Parliament should wield the power of war"