Policy Briefing
From: Attorney-General’s Department.
To: Department of the Prime Minister and Cabinet.
Date: 28 October 2015.
Re: Legislating to require parliamentary approval for a declaration of war.
I PROPOSAL
The Australian Constitution does not expressly state who is responsible for declaring war. At present, the unwritten practice is that the decision to declare war is exclusively a prerogative power vested in the Federal Executive. No deliberative process is required. This policy briefing proposes that the decision to declare war must be debated and approved by both Houses of Parliament.
II EXECUTIVE SUMMARY
The main issues facing the inclusion of parliament in the decision of declaring war include:
• At present, according to convention, the Executive has the power to declare war without
consulting parliament under sections 61 and 68 of the Constitution.1
• It is possible to legislate under section 51(vi) of the Constitution (the defence power) to
require the parliament to approve any declaration of war.2
• This new legislation would involve a Bill under section 50C of the Defence Act 1903,3
which allows the deployment of Australian troops overseas to require parliamentary
approval.
• Requiring parliamentary approval may impede the government’s ability to quickly
respond to sudden security threats.
• Caveats may need to be included in the new legislation that empowers the Executive to
declare war without parliamentary approval in certain situations where quick action is
required.
III BACKGROUND
Unlike the relative stability of the Cold War, post-9/11 international relations in the ‘Asian Century’ has become increasingly unstable due to the rise of China, tensions in the South China Sea, a resurgent Russia, a nuclear armed North Korea, the threat of global warming, and the increasing ability of non-state actors such as ISIS in an increasingly globalized world to undermine Australia’s security. The result is the increasing likelihood of a major conflict, particularly in the Asia-Pacific region, where Australia will be required to use armed force to defend its security interests. With such risks there is a democratic expectation that the Executive consult parliament before committing Australia to a potentially costly war.
IV REASONS FOR CHANGE
Arguments for:
As a democracy, the high costs of going to war in terms of money and lives warrants the approval of the people’s representatives in parliament. Australia has spent almost $20 billion on overseas military deployments in the last two decades.4 Parliamentary involvement will help ensure that the Executive’s decision to declare war is representative of the will of the people. Australia has inherited the convention that the power to declare war solely resides with the executive power of the Crown. Consequently, convention holds that this power now resides with the Federal Executive Council under section 61 and 68 of the Constitution. This constitutionally unstated convention results in the bypassing of democratic checks on governmental power. At present the Executive is not required to consult Parliament before committing Australia to war. For example, in 2001 the Howard government made no statement to parliament before holding a press conference to confirm Australia’s commitment to send military forces to Afghanistan. This decision cost the lives of 41 Australian soldiers and more than $9.3 billion.5 At present the Executive is not required to follow the direction of parliament before declaring war. For example, in 2002 the Howard government consulted parliament regarding a possible role for Australia in a second Iraq war. In January 2003, despite significant opposition, the government confirmed that Australia would send soldiers to Iraq. Later, in March, after war had been declared, the government put forward a motion to parliament to seek endorsement for its decision. This decision cost the lives of 2 Australian soldiers and more than $2.5 billion.6 The cost to Australia also includes the anguish of Australian families and communities related to the soldiers who serve, and includes the fact that many returning soldiers suffer from injuries and post-traumatic stress disorder. For example, the number of PTSD-related suicides among former soldiers who fought in Afghanistan is three times that of soldiers who died in Afghanistan.7 A governmental decision that negatively impacts the lives of Australians in this significant way must be debated before parliament.
Arguments against:
Legislating under section 51(vi) of the Constitution for a change to section 50C of the Defence Act 1903 to require parliamentary approval for a declaration of war will need to be passed through both houses of parliament. There may be considerable political opposition due to the historical bipartisan support of retaining the Executive’s exclusive power to declare war. Requiring parliamentary approval may delay the government’s response to sudden security threats. Parliamentary debate can be a slow process and may result in the divisive politicization
of the issue. Furthermore, parliament may not be sitting when an emergency arises Consequently, where quick action is required, parliamentary debate may hinder the government’s ability to protect Australian interests. Parliamentary debate will be undermined by a lack of access to classified information and expert knowledge. Unlike much of the Executive, most parliamentarians are not experts in national security policy. Accordingly, parliamentary debate may lead to decisions that do not effectively protect Australia’s security interests.
V RECOMMENDATIONS
This policy brief recommends that the Executive propose legislation under section 51(vi) of the Constitution to require both Houses of Parliament to approve any declaration of war. The proposed legislation would involve introducing a Bill into parliament to amend section 50C of the Defense Act 1903. This section would be amended to read ‘Members of the Army may be required to serve either within or beyond the territorial limits of Australia with the approval of both Houses of Parliament.’8 The amendment to section 50C of the Defence Act 1903 would include a caveat, subject to further work, which states that in certain situations where quick action is required the Executive may declare war without the prior consent of parliament. In essence, the caveat would require the subsequent endorsement by Parliament of the Executive’s declaration of war. Agree to legislate to require parliamentary approval for a declaration of war.
Articles and Journals:
Australian Strategic Policy Institute’s Defence Budget Brief 2014-15 (May 2014)
Brown, James. “Was the war in Afghanistan worth it?”, The Canberra Times (1 January 2015)
<http://www.canberratimes.com.au/comment/was-the-war-in-afghanistan-worth-it-20141230-
12fx1l.html> [Accessed 24 October 2015]
Han, Esther. “Returned Australian soldiers with PTSD plead for more help, as Four Corners
program reveals widespread depression and homelessness”, The Sydney Morning Herald (10
March 2015) <http://www.smh.com.au/national/returned-australian-soldiers-with-ptsd-plead-formore-
help-as-four-corners-program-reveals-widespread-depression-and-homelessness-
20150309-13zgq7.html> [Accessed 24 October 2015]
Hutchens, Gareth and Cox, Lisa. “Iraq deployment to cost Australia about $400 million per year”
(15 September 2014) <http://www.smh.com.au/federal-politics/political-news/iraq-deploymentto-
cost-australia-about-400-million-a-year-20140915-10h35o.html> [Accessed 24 October 2015]
McKeown, Deirdre and Jordan, Roy. “Parliamentary involvement in declaring war and
deploying forces overseas”, Department of Parliamentary Services (22 March 2010).
Legislation:
Australian Constitution s 51(vi)
Australian Constitution s 61
Australian Constitution s 68
Defence Act 1903 (Cth)
