The Australian Democrats recently introduced
the Defence Amendment (Parliamentary Approval
for Australian Involvement in Overseas
conflict) Bill into parliament. Its purpose
is to place the responsibility for the
decision to send Australian troops overseas
with both Houses of Federal Parliament.
The decision would be subject to exceptions
covering the movement of personnel in
the normal course of their peacetime activities
and the need to take swift action in an
In an emergency, the Governor-General
may require defence force personnel to
serve outside Australia's territorial
limits, provided the Government then obtains
parliamentary approval within two days.
The Bill excludes overseas service by
members of the defence force pursuant
to their temporary attachment as provided
by section 116B of the Defence Act. Such
circumstances could include participation
as part of an Australian diplomatic or
consular mission; on an Australian vessel
or aircraft not engaged in hostilities
or in operations during which hostilities
are likely to occur; for the purpose of
their education or training; and for purposes
related to the procurement of equipment
With regard to current events, many
Australians have been shocked to discover
that the Prime Minister has the power
to send our troops to a conflict without
the support of the United Nations, the
Australian Parliament or the Australian
people. The Prime Minister, under the
guise of cabinet decision, and the authority
of the Defence Act, has exactly that power.
Neither the Cabinet nor the Prime Minister
are mentioned in the Commonwealth Constitution
but the executive power of the Commonwealth
is generally understood to include what
are called the prerogative (common law)
powers of the Crown. These powers include
declaring war, making peace and deciding
about the deployment of troops. The Defence
Act now regulates much of the exercise
of these royal prerogatives in relation
Section 68 of Australia's Constitution
stipulates that "the command in chief
of the naval and military forces of the
Commonwealth is vested in the Governor-General
as the Queen's representative." Despite
this, the Governor-General Peter Hollingsworth
did not sign anything to authorise the
current war on Iraq.
Formal declarations of war are proclaimed
by the Governor-General. However, it should
be noted that Australia has not made a
formal proclamation of war since 1939.
Since then there has been the Korean war,
the Malayan emergency, the Vietnam war,
the 1991 Gulf War and the current war
on Iraq, as well as numerous other smaller
conflicts where Australian troops were
For some time now, by convention, the
view has been held that the Governor-General's
role is a "titular" one. Therefore
the decision to go to war is a decision
by cabinet under the Defence Act.
At the time of the 1991 Gulf War the
Cabinet of the then Prime Minister Robert
Hawke made the decision, forces were committed,
authorised and, then, the Prime Minister
formally notified the Opposition leader
and Governor-General, of the Government's
action. Under public pressure and political
pressure from the Australian Democrats,
the issue was subsequently taken to a
recalled Parliament for debate. It is
this precedent that Prime Minister Howard
has pointed to many times in past months.
Of course there is an important difference
between 1991 and 2003, in that in 1991
the majority of the Parliament, though
not the Democrats, supported the decision
to commit Australian troops to the Gulf
war. This was not the case in 2003. Last
week the Senate clearly voted against
the decision to commit Australian troops
to war in Iraq.
The Howard Government has been the first
government in our history to go to war
without majority Parliamentary support.
It is time to take the decision to commit
troops to overseas conflict out of the
hands of the Prime Minister and a subservient
cabinet, and place it with the Parliament.
The Democrats first proposed in 1981
that the Australian Parliament's consent
be needed to commit troops to overseas
conflict, through seeking to move amendments
to the Defence Act. Subsequently, Senators
Colin Mason and Don Chipp sought to achieve
the same result through a Private Senator's
The example they pointed to then was
the Vietnam war, which Senator Mason described
as: "One of the most divisive issues
that has ever oppressed our history".
During that decade of war from 1962 to
1971, almost 500 members of the Australian
forces were killed and many thousands
injured. But it was the fact that a large
section of the Australian community opposed
the war that made it much more difficult
for those veterans to begin healing.
This is an edited
version of the Second Reading of the Defence
Amendment (Parliamentary Approval For
Australian Involvement In Overseas Conflicts)
Bill 2003, 27/3/03.
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