Introduction

Pursuant to the principles of separation of powers and representative government,[1] the modern manifestation of the Crown has departed from the Hobbesian paradigm that stressed the absolute authority of a single monarchical entity.[2] This compartmentalisation of the Crown’s authority has left the right to declare war and deploy our Australian Defence Forces (ADF)[3] overseas in two governmental bodies – the executive, actively, and legislature, passively – a constitutional safeguard with the raison d’être of minimising the unreasonable exercise of these powers.

Although the arguments justifying the current arrangement of war powers are valid a priori, the amount of transparency and accountability in the executive’s powers have been questioned and problematised in the past.[4] A three-pronged approach is necessary in adequately addressing such concerns: by explaining the past – on how war powers have changed in manner of governance over time, particularly vis-à-vis the mood for increasing democratisation and parliamentary oversight; by normatively justifying the present – on why war powers should be and are vested in the executive based on the political demands of war; and by reforming the prospective – on how Cabinet can implement ameliorative changes to further increase democratic accountability and responsibility, without mitigating the normative rationales justifying Cabinet’s solitary authority over war.

Ergo, the system must be recalibrated, bringing into fruition a new equilibrium that balances the effective defence of the Commonwealth with the responsible and accountable deployment of the ADF. To achieve this, bona fide war powers should maintain with the Governor-General in Council, insofar as increased checks and balances are implemented ensuring that Australia’s military governance is congruent with the democratic principles underpinning modern Australia.

I. Explaining the past: contextualising Australia’s war powers

Australia’s military capability finds its genesis in March 1901 when the respective ‘naval and military defence’ forces of the six states amalgamated to ‘become transferred to the Commonwealth’.[5] Since then, control over the ADF has undergone various handovers to arrive at its current organisation, despite the Governor-General’s constitutional but titular role of commander-in-chief stipulated at Federation.[6] Narrating a timeline highlighting these transferals in control is pertinent to contextualising the progressive democratisation of Australia’s war powers, including Parliament’s increasing role.

The relationship between the Dominion of Australia and the United Kingdom (UK) in the first decades following Federation was largely one of subordination: Australia was a lesser part of the then British Empire and at centre stage was Britain proper. Australian governmental powers were manifestly contingent on the Imperial government’s paramountcy to the extent that no organ in Australia held either substantive or formal rights to declare war independently or deploy troops unilaterally.

Although our founding fathers had created the viceregal office of Governor-General to facilitate the efficient execution of the monarch’s will in Australia,[7] this delegation in powers was neither absolute nor entire, being subject to the monarch’s assignment. [8] The font of authority – including the prerogative to declare war – ‘[resided with] His Majesty in his right of his whole Empire, and [did] not reside in … right of Australia’.[9] Eo ipso, the Constitution lacks any explicit enumeration of war- and peace-declaring powers.[10] This preclusion was further compounded by a negative codification at legislative level in which neither the UK nor Australia had enacted legislation delegating the monarch’s prerogative to the Governor-General,[11] as had occurred in the Dominions of Canada and South Africa.[12] The de jure enablement of an independent Australian declaration of war was therefore non-existent.

 Further compounding this disenfranchisement was the suzerain control over Australia, which vested the British government with the responsibility to decide on Australia’s foreign affairs policies. This ultimately meant that the British government – in right of the King- or Queen-in-Council – had absolute authority in dictating whether to commit the entire Empire to war simultaneously.[13] Thus, Australia had no say in the deployment of troops overseas and had no right in refusing the UK’s declaration of war on its behalf as policies ‘repugnant’ to the UK were automatically ‘void and inoperative’.[14]

The first step to Australia’s independence was marked by the Statute of Westminster’s codification of the Balfour Declaration,[15] according to which Australia was to gain ‘full power to make laws having extra-territorial operation’[16] and would no longer be bound by the inconsistency provisions of the Colonial Laws Validity Act.[17] From 1942 onwards – but formally backdated to 1939 – Australia was ‘legislatively independent of the British Parliament’ and had therefore gained the sovereign capacity to commit the ADF to war, without the need for approval from ‘a higher Imperial source’.[18]

Moreover, the authority of the Statute of Westminster outreached the expected capabilities of just providing Australia with the right to declare war as an independent country. Its authority is also lent to bequeath Australia with absolute jurisdiction not only to determine its defence policies, but to execute them entirely within the governmental processes of Australia.  Mason J in Barton v Commonwealth – later confirmed in Davis v Commonwealth – acknowledged that subject to the Statute of Westminster, the Governor-General’s authority to exercise the ‘execution and maintenance … of the laws of the Commonwealth’[19] as an independent country would demand the inclusion of ‘prerogative powers of the Crown, that is, the powers accorded to the Crown by … common law’.[20] Hence, this transferal in authority imbibed the Governor-General with the de jure right to execute the monarch’s prerogative, subject to the advice – and thus de facto control – of Cabinet.[21]

With the adoption of the Statute of Westminster, the constitutionally enumerated responsibility of Parliament to control Australia’s ‘naval and military defence … and the control of the forces’ was therefore promulgated fully.[22] Although constitutional convention does not necessitate Parliament’s consent on the use of war powers, the common law prerogatives of the Governor-General in Council are liable to abrogation by virtue of parliamentary sovereignty and are thus contingent on its passive allowance.[23] This was mentioned by Mason CJ, Brennan, Deane, Dawson and Toohey JJ in Brown v West in which ‘the executive power of the Commonwealth … is susceptible of control by … a valid law of the Commonwealth [to] limit or impose conditions on the exercise’.[24] Hence, Cabinet’s war powers are generally accountable to Parliament pursuant to the principles of representative and responsible government, in which it would be ‘appropriate that the Parliament, at the first opportunity, have the chance to debate [the] motion’.[25] Governments have, on occasions, noticed Parliament and supplicated its opinion.[26]

II. The normative present: satisfying contemporary demands for war powers

When considering the arrangement of war powers, form must fit function: the organisation of war-powers’ governance should meet and address the political demands and characteristics of contemporary hostilities to enable the most efficient mobilisation of the ADF possible, within constitutionally stipulated parameters.[27] Typifying Australia’s satisfactory organisation is the adoption of similar conventions by other Westminster-system governments.[28] An analysis of this arrangement thus not only highlights the congruence of war powers within the executive’s jurisdiction, but also calls into question the suitability of any potential war-powers authority in parliamentary control.[29]

Calls for Parliament to supplant absolute control over Cabinet’s war powers are predominantly predicated on arguments positing the ‘bypassing’ of ‘normal Parliamentary processes of critique and accountability’.[30] Such arguments are inherently reductive as they dismiss the potency of constitutional protections. For example, although Cabinet’s war powers are not mandatorily reliant on parliamentary approval, its actions are critiqued and accounted for generally but directly, if not at Question Time, by parliamentary committees or by the media, then by the people at the subsequent general election.[31] Furthermore, a red-taped system of Parliament-controlled war powers would be a frivolous and overcomplicated rendition of the current arrangement, as motions through Parliament are easily surmountable by virtue of the government’s inherent majority in the House of Representatives and its more-often-than-not significant number of Senate seats.[32]

Whilst parliamentary control of war powers may seem practical per se, they must be considered in context of and in relation to other powers exercised by the executive, particularly its external affairs powers. Australia’s place in the international community is represented by the Governor-General in Council in its ‘exclusive and unfettered treaty-making power’[33]; the ratification of international laws and treaties thus ‘renders the Commonwealth liable in international law to those countries’.[34] In fulfilling this external affairs responsibility, Cabinet is therefore directly answerable to the international community via its Department of Foreign Affairs and Trade plenipotentiaries, particularly at the United Nations (UN).[35] A disconnect would thus exist if the bodies exercising authority over external affairs and war powers were two separate and conflicting entities, qua Cabinet and Parliament, respectively. The international community ought to have the right to directly scrutinise and question Cabinet, which in turn ought to answer to any critique. Without such a direct line of accountability, the adherence to international norms and obligations, which Australia is bound to,[36] cannot be ensured.

War-time decisions often demand swift and immediate responses which cannot be executed by Parliament due to its nature of operation. As a matter of both fact and law: the legislative powers of Parliament necessitate the meeting of the respective chambers in situ and necessitate constitutional enablement as no legal right to act exists when Parliament is prorogued or dissolved.[37] Although Parliament may be recalled by the Governor-General in the former case to address matters of an emergency nature, no such remedy exists for the .[38] Ergo, Parliament is ill-equipped to address the need to deploy the ADF on short notice. In stark contrast, constitutional convention facilitates an unbroken and perpetual chain in executive governance. When Parliament is dissolved, most governmental powers are exercised by the executive in a Lockean manner, in which the caretaker government takes over the responsibilities that Parliament ‘can’t foresee … [and] that the law can’t possibly provide for’,[39] within conventionally-set parameters.[40] The executive is thus able to redress emergency situations immediately, when required; any reform to the current paradigm would create two conflicting standards and rules of operation, engendering an incoherent and obfuscated bureaucratic system that precludes the existence of a direct and succinct chain of command and responsibility.

The nature of the information upon which war-time decisions are made is in direct conflict with Parliament’s culture of transparency. [41] Decisions made by Cabinet to engage in armed conflict and mobilise the ADF are made in confidence and are informed by information privy to Cabinet, often sourced by intelligence agencies.[42] Such information is classified as its open discussion may be injurious to the outcome of operations, threatening the safety of our ADF personnel. On the other hand, Parliament’s motions are passed through open debate which makes decisions about any pre-emptive and covert operations accessible to hostile forces, precluding the efficient mobilisation of the ADF.[43] Kirk furthers this argument, positing that even if parliamentary conventions were circumvented ‘by holding secret sessions of parliament’, the minimisation of detriment to national security could not be ascertained.[44] Parliamentary control of war powers is further problematised in the context of Crown privilege which binds information to the Cabinet. The indicia of this is seen with Gibbs ACJ’s test in Sankey v Whitlam, wherein ‘the court will not order the production of a document … if it would be injurious to the public interest to disclose it’.[45] It would be reasonable to assume that the production of such sensitive information would ‘put the interest of the state in jeopardy’,[46] thus preventing the release of and access to classified information for Parliament to make decisions vis-à-vis the deployment of the ADF.[47]

III. Reforming the prospective: increasing checks and balances on war powers

Although war powers are appropriately vested in Cabinet’s hands according to the justifications supra, implementation of further checks and balances could increase accountability and transparency in any decision to operationalise the ADF. Not only would this sustain the legitimacy of ADF involvement in hostilities according to the values of modern Australia, our system of governance would be at the vanguard of jurisprudence and political thought, democratically and legally prepared for the challenges of tomorrow.

Currently, no advisory body exists with the purpose of advising Cabinet, apolitically, of any and all existing avenues and requirements necessary before triggering the use of war powers; such a decision is sanctioned in a vacuum. Sampford thereby puts forward a proposal for Cabinet to solicit legal and political advice either from independent practice, the High Court or a standing assemblage of international lawyers and emeritus High Court judges.[48] Such would preserve the normative powers of Cabinet whilst ensuring that any decision to deploy the ADF is responsible and adeptly informed. 

The Irish ‘triple lock’ mechanism demands that the mobilisation of Ireland’s armed forces are only warranted when a consensus exists amongst all three bodies: the Dáil, the executive and the UN Security Council. [49] The adoption of a similar legal requirement for conflicts where Australia is not a directly-affected party would satisfy the executive’s international obligations whilst exempting the locking of any emergency need for Cabinet to exercise our jus cogens ‘right to individual self-defence’.[50]

Where the democratic demand for parliamentary control of war powers cannot be disregarded, a best-case alternative would be adopting a process of ex post facto parliamentary codification of the executive’s use of war powers, rather than ex ante parliamentary sanction. Somewhat likened to the United States’ reform on the President’s war powers, such a model would enable the executive to respond to immediate hostilities for an interim period until the legislature is able to convene, to either ratify the executive’s decision or retract and discontinue such an order. [51] As Parliament has no unilateral power to order the use of war powers without the executive, nor the executive the power to continue the use of war powers without Parliament, the two bodies must act in concert, apolitically, to ensure that only the best interests of the country are considered. Similarly, such a system allows any decision to be democratically mandated by the people qua Parliament, whilst preserving the privileges and responsibilities of the executive.

Conclusion