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Now to say, never again

By George Williams - posted Wednesday, 18 June 2008

With the withdrawal of Australia's combat troops from Iraq, we should examine how we got there in the first place. Australia should never again go to war based only on a decision of the government of the day. Parliamentary approval should be required for a prime minister to commit Australian troops to hostile action overseas.

Britain is moving in this direction, and so should Australia.

It might be expected that the Australian Constitution sets out who can declare war for Australia. After all, there are few exercises of power more important than committing the nation to war. Unfortunately, the Constitution does not provide an answer. It says nothing about who can declare war for Australia or the circumstances in which we might go to war, including whether Australia can use military force as part of a pre-emptive strike. There is certainly nothing resembling the Japanese Constitution, which states that ''the Japanese people forever renounce war as a sovereign right of the nation''.


It is not surprising that much is left unsaid. The Constitution was framed in the 1890s according to the conventions and practices of the Westminster traditions of that era. This was not a time when popular or even parliamentary involvement in decisions about war was contemplated, let alone that Australia might consider itself bound by the rules of a body like the United Nations. If we were bound in any way, it was to the foreign policy of Britain.

Without a clear answer in the text of the Constitution, some have argued that the decision to go to war in Iraq should have been made by Parliament or the people. However, the unwritten practices of the Constitution provide that the decision lies within the sole prerogative of the prime minister and cabinet. Parliament or the people may be consulted, but the decision will still be made in the secrecy of the cabinet room. The governor-general will then be informed as commander in chief of any decision to go to war, and by convention must follow the decision or be dismissed.

Australian practice is based on how the British war powers have been exercised for hundreds of years. They give maximum discretion to the government of the day. However, change is afoot after Iraq, with British Prime Minister Gordon Brown proposing to give up his power to declare war without parliamentary approval.

This would take Britain closer to the rules in the United States Constitution. While President George W. Bush is the ''commander in chief'' of the US armed forces, the power ''to declare war'' is held by Congress. Despite this, presidential power has been used without the approval of Congress to engage in undeclared wars in countries such as Vietnam. This has led to ongoing debate over which branch of government has the war powers of the nation.

The tension between the US Congress and president was resolved quickly over whether to go to war in Iraq. In the aftermath of the September 11, 2001, terrorist attacks, Congress authorised the president to use US armed forces ''as he determines to be necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq''. The resolution allowed the US to go to war with or without the backing of the UN Security Council.

This raises the question of whether Parliament or the people should play a role in Australia. I believe that such a decision is not one for the people. A plebiscite is too unwieldy for such a question. A popular vote on whether to go to war should be rejected.


Parliament, on the other hand, should play a role. One reason is the obligations assumed by Australia under international law.

Australia has been a party to the UN Charter since 1945. Its preamble says that the UN was established ''to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind''. It also says that ''armed force shall not be used, save in the common interest''.

After the experience of two world wars, the drafters of the UN Charter established a world order based on two principles: to bring about the resolution of international disputes by peaceful means; and the recognition that the use of force is only justified as a last resort in the interests of the international community, and not of individual states.

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First published in The Canberra Times on June 7, 2008.

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About the Author

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

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