24 April 2010

A Supplementary Note on Parliamentary Approval with respect to the Exercise of War Powers

Andrew Farran, Garry Woodard and Paul Barratt

The notion of ‘Parliament’ and ‘Parliamentary approval’ as a precondition to the exercise by the Executive of ‘prerogative’ war powers may be questioned or rejected given the bicameral nature of the Australian Parliament and the different systems of election for each House. More than once have motions in support of military actions abroad been denied in the Senate where the balance of power may be held by minority parties. Yet it can be argued if the military issue is so controversial such rejection reflects our system and is a safeguard against poorly judged or rash action by the government of the day. Conversely, it may be argued that if the military situation is really grave then both major parties would surely be in agreement about it and the proposed action would be supported, and supported promptly, by an appropriate parliamentary resolution.

It is possible, however, that in a number of situations involving the deployment of Australian troops abroad the issues will not be so clear cut, and the Government of the day should not, it may said, be paralysed by minority parties in the Senate, particularly when the government is in possession of information relevant to the need for action but which cannot at the time be publicly disclosed. Notwithstanding a presumption against withholding disclosure where not warranted, or to disguise ulterior purposes, its avoidance should be secured by tighter Parliamentary rules. 

A possible way around this problem would assume that the deployment of Australian troops abroad, in circumstances where lives would be endangered, is sufficiently serious as to warrant parliamentary passage and that the overall will of the people should be expressed or confirmed by Parliament in some form. In the case of Constitutional change and parliamentary deadlocks leading to a double dissolution, the government of the day has the option, after due process, of putting the issue to a Joint Sitting of both Houses. So too with ‘acts of war’: that is, the Constitution could be amended to provide that in warlike or potentially warlike situations where either a declaration of war may be required, or at the least the deployment of Australian troops abroad in warlike circumstances, a Joint Sitting of both Houses should be convened to consider and approve the actions proposed by the government of the day. This approach was advocated by constitutional law expert George Williams in a submission to the recent Senate Foreign Affairs, Defence and Trade Committee Inquiry into the war powers legislation proposed by Senator Ludlam (see George Williams on the War Powers Bill).

Such a process and procedure would signify the high significance of the course of action being proposed and would concentrate the minds of the general public on the seriousness of the military situation. The government of the day should then have its way with clear support and political legitimacy.

As for the possibility of government deception (e.g. the alleged WMDs prior to the invasion of Iraq), concerns of this nature would seem to be receding given the emergence of 7/24 news coverage, the penetrative capabilities of internet and other electronic communications accessible by the public, and the lead time preceding a warlike situation (other than a clear and present emergency). The seriousness of a Joint Sitting would make resort to deception to procure a particular outcome a matter of huge political consequence, much greater than deception prior to or in explanation of an Executive Act.

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