Sending troops into conflict must be a decision for Parliament, not the PM

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 emergency.

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 or stores.

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 to defence.

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 involved.
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 Bill.

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.