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.
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
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.
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
The framers of the
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
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
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
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:
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
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
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. ]
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 Greens, George Williams, General Leahy, Melissa 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"