Introduction

The Executive power to go to war without Parliamentary consultation or approval, found in sections 61 and 68 of the Constitution,[1] should be limited. The royal prerogative to declare war is a ‘relic of a past age’ in which the will of the many was thought best executed by the one.[2] The restriction of this ‘quintessentially sovereign’[3] power is consistent with democratic principles of ‘government by the people’, and largely uncontested.[4] The primary contention lies in the practical difficulties of limiting the war prerogative. While it would ‘not be competent’ to unduly fetter necessary pockets of Executive power,[5] the process of declaring and conducting war should be democratised. This should not, however, be done through legislation. Rather, a Parliamentary committee should be established to scrutinise the exercise of the war prerogative.

Australia’s current model

The war power was inherited from Britain no later than 1942 as ‘one of the oldest and most honoured prerogatives of the Crown.’[6] In early federation, the war prerogative was read alongside the incidental power to ensure ‘in the most ample and absolute terms … the full power and duty of taking every measure of defence which the circumstances may require.’[7] Guaranteeing Australia’s ability to protect itself remains important as a core element of sovereignty.[8] The operation of the war prerogative is, however, unnecessarily undemocratic towards this aim. The Constitution grants the power to control and deploy forces to the Governor-General as ‘purely titular’[9] - the Defence Act grants these powers to the Minister of Defence.[10] There is no defined role for Parliament, unlike more robust systems that require prior Parliamentary debate or approval.[11] Dietrich, Hummel and Marschall point out that Australia’s war power is ‘very weak’ – there is ‘no Parliament-related action required for the use of military force [and] no specific Parliamentary control or debate relating to the use of military force.’[12] While Australia must retain the war prerogative to some degree, its entry into war with Iraq in 2003 demonstrates the need for a greater Parliamentary role in the decision-making process regarding Australia’s war commitments.

Reasons for limiting the war prerogative

The Iraq War case study – war must be legal, based on accurate facts, and directly in Australia’s interests

The Australian public was informed of Prime Minister Howard’s commitment to the Iraq War on 18 March 2003, at which time the decision to enter that war had already been made.[13] This was, according to former Prime Minister Malcolm Fraser, a ‘betrayal of democratic values and … Australian values’, especially since Prime Minister Howard was ‘a strong leader [who] would have had no difficulty in persuading his Government that participating in the war was necessary.’[14] Fraser’s position is justified on several fronts. First, the Howard Government believed, on insufficient evidence, that Iraq possessed weapons of mass destruction and was capable of using them.[15] Secondly, continuing a trend dating back to the Korean War,[16] The Liberal Government was keen to follow the US into war to secure Australia’s protection into the future.[17] Thirdly, Prime Minister Howard avoided Parliamentary questions regarding Australia’s potential involvement in Iraq for months before his decision was made, arguably subverting an opportunity for democratic input.[18] Since 2003, Australia has entered wars based on ‘captain’s calls’, such as the 2014 humanitarian aid that developed into air strikes in Syria under the Abbott Government.[19] Entering a war is a decision of such gravity that it should not be the subject of one-dimensional political decision-making, but requires some participation by Parliament.

Responsible government

Australia’s Constitution is based on the principle of responsible government.[20] Namely, Parliament must be able to scrutinise the government,[21] to ‘watch and control the government: to throw the light of publicity on its acts.’[22] Crucially, this ‘links the Executive Government to the Australian people.’[23] If Parliament is afforded no prospective role in the decision to enter a war, it has no effective mechanism by which it can connect the citizens to, or scrutinise the Executive’s decision.[24]

Some argue that retrospective accountability is sufficient. Former Prime Minister of the United Kingdom Tony Blair suggests that the Executive’s sole control of the war prerogative does not exclude Parliamentary accountability. Blair states that ‘the reality is that Governments are accountable to Parliament, and they are, and they are accountable for any war they engage in, as they are for anything else.’ [25] Public opinion indicates, however, that war is a decision of elevated status and that it is,[26] as well as a diversion of resources and cause of political destabilisation,[27] a ‘terrible waste of human life.’[28] For responsible government, as a foundational principle of the Constitution,[29] to be upheld, accountability to the Legislature must be prospective, not retrospective.[30] War brings with it irreversible consequences that retrospective accountability or condemnation cannot rectify.

Reasons against limiting the war prerogative

The evolution of war necessitates Executive discretion

Twenty-first century war is conducted rapidly, meaning we no longer have ‘the luxury of time.’ [31] Some argue that accountability must, now more than ever, be sacrificed for speed and reflexivity. That the war prerogative must be retained for this reason is too simplistic – the High Court has recognised the existence of discretionary power in emergencies,[32] and exercises of Executive (Nationhood) power in this way are possible so long as they are shown to be necessary and proportionate.[33] Furthermore, any limitation on the war power, as illustrated by approaches in the United States and the United Kingdom discussed below, include exemptions for immediate threats or other instances in which consulting Parliament is difficult or impossible.

Parliamentary input will not affect, or will be detrimental to the outcome 

Two arguments are made against the utility of greater Parliamentarian involvement. First, Parliamentarians may vote along Party lines, leaving the outcome unaffected.[34] This argument disregards the importance of the democratic process prior to the decision, which allows citizens the opportunity to participate in the debate and scrutinise the Government. Secondly, the shifted dynamic from retrospective to prospective responsibility may make Parliamentarians overly conservative even where a war is justified.[35] Parliamentarians would know the consequences of their votes, from which they cannot absolve themselves. The second point assumes that Parliamentarians are content to leave difficult decisions to Cabinet, when what is more likely is that there will be bipartisan support for war against threats such as ISIS.[36]

Confidentiality of information relating to war

Lastly, concerns exist around confidential documents that may form the basis for a decision to go to war but cannot become Parliamentary – and therefore public – knowledge. Barratt suggests that confidentiality should not preclude at least the Opposition leadership access to crucial documents, since ‘it is fundamental to our system that today’s Opposition leader could be tomorrow’s Prime Minister.’[37] By allowing a select few, either in the Opposition or in a Parliamentary committee, access to confidential documents, Australia gives itself the most robust basis for reasonable wars without jeopardising the need to maintain the secrecy of the information.[38]

What model should Australia adopt?

Legislation

The War Powers Resolution obliges the United States President to consult Congress ‘in every possible instance’ prior to declaration of war or deployment of forces,[39] and to report to Congress within specified deadlines.[40] Congress, not the President, holds the power to declare war and deploy forces.[41] Legislative solutions such as the US model seem, prima facie, to offer the most certain option for success through its enforceability upon the Executive. This model is not, however, suited to Australia.

Although legislation binds the Executive, this does not guarantee compliance. President Obama, in 2014, sent troops into Northern Iraq without seeking Congressional approval.[42] Problems with compliance arise from the undefined exemptions under the War Powers Resolution in cases where the Executive may act without Congressional approval. To avoid this problem, Australian legislation would have to define, in detail, the conditions upon which the Executive is exempt from consulting Parliament. Legislation, as an ‘imperfect instrument of communication’,[43] cannot anticipate the specific details of exemptions as they will arise, and exemption provisions will have to be broadly expressed to allow reliance upon them. Furthermore, the Judiciary could perform no accountability function regarding adherence to such a statute. Political matters, such as war and peace, are non-justiciable as judicial review would blur the separation of powers and offer unsuitable remedies.[44] Additionally, it is uncertain to what extent legislation modifying the prerogative would be effective. The Full Bench of the Federal Court considered that the Migration Act 1958 was merely ‘facultative’ and existed alongside the ‘full’ prerogative to exclude aliens.[45]

Furthermore, a legislative model does not fit easily with Australia’s constitutional framework. Australia’s Constitution was drafted to operate elastically, with the drafters specifically pointing out their intention to avoid the rigidity of the US system.[46] Legislation is, by its nature, a relatively inflexible option. Drafting and amendment processes are slow, particularly for new or difficult areas,[47] and may produce outcomes that undermine rather than further the aims of democratising the prerogative. In summary, a legislative model offers a cumbersome solution to reforming the war prerogative without any guarantee that the provisions of the statute would be observed by the Executive.

Convention

A constitutional convention - as unwritten ‘understandings, habits, or practices that … regulate the conduct of the several members of the sovereign power’ – offers significantly more flexibility.[48] This model was adopted by the United Kingdom, with the ‘purely symbolic’ 2003 Parliamentary vote regarding Iraq as the ‘foundation precedent’ and the 2013 Parliamentary vote on operations in Syria as the convention’s solidification.[49] Reform in the UK was triggered by ‘very real outrage … in legal and parliamentary circles’ and the findings of the Chilcot Report on the 2003 Iraq War.[50] From this set of factors arose a convention requiring the Prime Minister to, wherever possible, obtain the approval of the House of Commons before declaring war or mobilising ‘significant, non-routine’ forces.[51] Australia did not follow this path of reform and, while this model has been endorsed elsewhere including in Canada,[52] it has significant shortcomings when applied to Australia.

The difference between recognising and enforcing a convention is significant,[53] and an important consideration for the suitability of this model to Australia for two reasons. First, compliance in the UK is not unhindered. Tony Blair emphasises that the Prime Minister can still declare war if the circumstances fall within the unwritten, and therefore undefined exemptions of ‘significant or non-routine’ or ‘emergency’.[54] Secondly, Australia presents a unique challenge to the convention model due to our status as a middle-power that perceives its security as contingent upon following the US.[55] If the Government genuinely believes Australia’s security rests on going to war, the political consequences of breaching a constitutional convention may not be ‘too costly to bear.’[56] Combining the undefined nature of the convention with a real likelihood that the government would seek to bypass it, it is possible that this kind of limitation on the war prerogative will be ineffective.

Joint Parliamentary Committee

This section argues that the most appropriate way of limiting the war prerogative in Australia is to establish a Joint Committee tasked with scrutinising exercises of the war power and facilitating democratic engagement. A War Power Committee is not suited to a Select Committee as reforming the war prerogative requires more than topical involvement, and the Committee may have to convene quickly in times of war.[57] There is not, however, consistent work that justifies establishing a Standing Committee. The proposed Committee, therefore, is appointed like a Standing Committee, but dormant until times at which it is needed, similar to the operation of the Queen’s Commission.[58] The War Power Committee’s Resolution of Appointment could set up machinery to empower the Committee when it becomes apparent that the Australian Government faces a decision of war. By building this trigger into the Committee’s foundational document, it prioritises consistency in accountability and aims to avoid ‘adhockery’.[59] The appointment and operation of a War Power Committee would necessarily differ from that of the Joint Standing Committee on Treaties (JSCOT) in 1996,[60] which regulates the other external affairs prerogative.[61] There is not as much pressure for reform,[62] and war is an inherently more dynamic power to regulate. A Committee to regulate the war prerogative would, however, work towards the same goals as JSCOT, namely increasing scrutiny and democratisation.[63]

Appointing Government and non-Government members from the House of Representatives and the Senate affords the Committee diverse expertise,[64] as well as the public’s trust to independently hold the Government accountable and review confidential documents.[65] The ability to hear evidence in camera also offers a safe space for secret information to be disclosed to a Parliamentary body for scrutiny.[66]

Processes of public engagement, such as public hearings and submissions, forms the integral work of Committees and provides a forum through which the prerogative can be democratised.[67] Democratic input, as facilitated by the Committee, would be offered as a recommendation to the Government as this does not compromise the pragmatic actions that occasionally must be taken at the Government’s discretion. Crucially, the written element of this model provides the best chance of compliance – the Committee’s mandate can include standard Parliamentary Committee powers to the exclusion of emergency or confidential circumstances that can be drafted with more precision outside of a legislative context. An argument may, however, be made against this model on the basis that its mandate would not be sufficiently broad.

Recent scholarship has brought the effectiveness of JSCOT’s mandate into question, with Byrnes arguing it does not cover the necessary international instruments to rectify the ‘democratic deficit’ of the treaty-making process.[68] Naturally, this raises the question of, if a War Power Committee is established, will its ambit be so limited that it becomes an ineffective accountability mechanism? Even with a limited mandate – confined to ‘significant’ or ‘non-routine’ decisions and operations – granting the Committee standard Parliamentary powers would significantly increase scrutiny of Government prior to making these decisions.[69] The goals of limiting the war prerogative are served by the Committee’s operation, namely to democratise the decision through a politically balanced Committee and implement prospective checks upon the Executive’s exercise of the prerogative. This model also allows for the Committee framework to be expanded relatively easily if public opinion demands it in future. Australia’s current war power means the establishment of a Committee, even if initially limited in its mandate, should not be underestimated in the process of reform. This model does not compromise fluidity for certainty, or vice versa. In doing so, it provides the best option for maintaining the constitution as a ‘living document’ that can operate beyond its time of origin.[70]

Conclusion

Australia must retain some Executive discretion for the war power to be effective in times of emergency. However, the principle of responsible government demands effective mechanisms of accountability and democracy. A Joint Parliamentary Committee on the war prerogative is consistent with the existing constitutional system, encourages compliance, and offers the most certain framework for accounting for emergencies or other instances in which Parliament’s inclusion would be detrimental to protecting Australia.