We had a huge social media response last week to our comparative article about the separation of powers in Australia and the US. Questions and comments about the role of Commander-in-Chief in Australia and the US kept popping up. While it’s clear that the President is the Commander-in-Chief in the US, it is less clear and somewhat confusing about who is responsible for this role in Australia.
So this week we take a look at Section 68 of the Australian Constitution which stipulates the command of the naval and military forces.
Chapter II Executive Government
The executive power is vested in the Queen and exercised by the Governor-General (section 61), who is advised by the Federal Executive Council (section 62) and who must act on the advice of this Council when the Constitution refers to ‘Governor-General in Council’ (section 63). If you have a read through the Constitution you will see that term is stated 13 times.
The ‘Governor-General in Council’ appoints Ministers who are then members of the Federal Executive Council (section 64). Then there are a few more sections outlining the number of Ministers, salaries, the requirement that Ministers must sit in Parliament and the appointment of civil servants, before we get to Section 68:
Section 68 Command of naval and military forces
The command in chief of the naval and military forces of the Commonwealth is vested in the Governor‑General as the Queen’s representative.
You’ll notice that this section does not refer to the ‘Governor-General in Council’, but rather the power is vested in the Governor-General as the Queen’s representative.
So at first glance it could seem as though the Governor-General might have some prerogative here. However, the effect of these words is that the Governor-General may act on ministerial advice, rather than after a meeting with the Federal Executive Council.
The drafting of section 68
Section 68 remained relatively unchanged from the first draft produced in 1891. There was a debate during the final Constitutional Convention held in Melbourne about exchanging the words ‘as the Queen's Representative’ to ‘acting under the advice of the Executive Council.’
It was clear to both sides of this debate that the intention of this section was that the Governor-General would have no personal power and should act solely on the advice of his or her Ministers. The people who wrote our Constitution were concerned about whether the wording sufficiently expressed this intention. In the end the change was deemed unnecessary. Quick and Garran 1901 explain:
The command-in-chief of the naval and military forces of the Commonwealth is, in accordance with constitutional usage, vested in the Governor-General as the Queen's Representative. This is one of the oldest and most honoured prerogatives of the Crown, but it is now exercised in a constitutional manner. The Governor-General could not wield more authority in the naval and military business of the country than he could in the routine work of any other local department. Of what use would be the command without the grant of the supplies necessary for its execution? All matters, therefore, relating to the disposition and management of the federal forces will be regulated by the Governor-General with the advice of his Ministry having the confidence of Parliament.
So if the Governor-General can only act on the advice of the Ministry is he or she the Commander-in-Chief in name only? Is the Prime Minister the person who has their ‘finger on the metaphoric button’? However, the Prime Minister is not even mentioned in the Constitution.
While the role of Prime Minister is central to the functioning of Government, it operates by convention. This unwritten rule, the accepted way of doing things has been passed down by tradition, rather than being specified in our Constitution. Each party chooses their own leader and once a party controls the majority of the House of Representatives their leader becomes the Prime Minister.
Our system of government is sometimes criticised because the Executive and the Legislature overlap (read the comments in last week’s article to see some of this criticism). But this overlap actually makes our Executive more accountable. The Cabinet and Ministry is responsible to the Parliament for every decision they make and they hold their positions with the support of Parliament. This is why you see Ministers being questioned in Senate estimates and other hearings where they have to explain their positions, policies and departmental legislation to the Parliament.
Australianpolitics.com explains responsible government:
Responsible Government is the term used to describe a political system where the executive government, the Cabinet and Ministry, is drawn from, and accountable to, the legislative branch.
So the Governor-General acts on the advice of ministers who are then responsible to Parliament. If anything goes sour, ministers can be replaced and the system remains stable as the Governor-General and the Parliament continue.
What role do Defence Ministers have?
We currently have three Defence Ministers. Senator Marise Payne is the Minister for Defence, Christopher Pyne MP is the Minister for Defence Industry and Dan Tehan MP is the Minister for Defence Personnel. Section 8 and 9 of the Defence Act 1903 states:
The Minister has general control and administration of the Defence Force.
The Chief of the Defence Force has command of the Defence Force.
Does this mean that one of the Defence Ministers or the Chief of the Defence Force is the Commander-in-Chief? And which Defence Minister would it be?
In a Senate estimates hearing on Wednesday 19 October, Minister Payne did not want to be drawn into defining whether she or Minister Pyne were the senior Defence Minister. Senator Payne eventually insisted that she and Minister Pyne were of equal rank because they are both members of cabinet.
Perhaps what Defence Minister Marise Payne was alluding to was that in the matter of defence decisions, it is the cabinet collectively that makes decisions. Not one Minister on their own. The Prime Minister has, on many occasions, mentioned his ‘traditional cabinet government’ where decisions are made as a team. Here is an excerpt from Malcolm Turnbull’s press conference after he took over as Prime Minister:
The culture of our leadership is going to be one that’s thoroughly consultative. A traditional, thoroughly traditional cabinet government that ensures that we make decisions in a collaborative manner. The Prime Minister of Australia is not a president; the Prime Minister is the first among equals. And you can see that the partnership between me and Julie [Bishop], the partnership with our colleagues will be a very clear cultural demonstration that we are operating in a traditional cabinet manner.
Who is the Commander-in-Chief in Australia?
Is it the Governor-General as the Queen’s representative in Australia? This is what the Constitution says. We know that the Governor-General must act on his or her Ministers advice. So would you say it’s the Prime Minister? And where do the three Defence Ministers fit into all of this? Could it be that one of them is the Commander-in-Chief? Or is it perhaps the Chief of the Defence Force?
Is there any one person who ‘has their finger on the button’?
While the Constitution states that the command of naval and military forces is vested in the Governor-General, he or she does not play a role in any decision to commit Australia to war. Former Governor-General Sir Ninian Stephen, who also served in WWII and as a High Court Justice explains:
Purely titular my title of Commander-in-Chief may be, but it does reflect the quite special relationship that I believe exists between the Governor-General and the armed forces of the Commonwealth. It is a close relationship of sentiment, based neither upon control nor command but which in our democratic society expresses on the one hand the nation’s pride in and respect for its armed forces and, on the other, the willing subordination of the members of those forces to the civil power.
The location of section 68 in chapter II of the Constitution makes it an executive power. Cabinet receives advice from the National Security Committee, the Australian Security Intelligence Organisation, DFAT, Defence Intelligence Organisation, Office of National Assessments, Australian Secret Intelligence Service, Defence Chiefs and other agencies before they collectively make a decision about whether they send Australian troops into a conflict. All of the cabinet are then responsible to Parliament.
Should the Parliament have some say in the war powers?
Some believe Parliament should have a vote on whether or not Australia joins any war. Senator Peter Whish-Wilson from the Greens recently stated:
Australia is one of the last Western democracies that can send its citizens to overseas conflicts without any recourse to Parliament. The laws and legislation in place now that give essentially full control to the Prime Minister and the executive date back to the feudal times of royalty.
Both major parties support the current arrangement where the cabinet makes the decision about whether Australia commits troops to any conflict. Often during times of war decisions need to be made quickly and defence and security advice given to the Cabinet cannot always be debated publicly in Parliament.
Others argue that these difficulties could be overcome? What do you think?
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