Parliament should wield the war power

ABC.net.au ran an op-ed of mine arguing that only Parliament, not the Prime Minister & Cabinet, should have the power to commit Australian troops overseas.

A longer more detailed version of my article that deals with most of the objections against war powers reform is in the most recent issue of Policy magazine.

This is such a commonsense reform that I’m surprised there is even any controversy over it. The fact that the Executive currently can take the nation to war after deliberating in secret is a relic of a monarchical past, when Kings and Queens ruled without accountability. It has no place in a modern democracy.

7 thoughts on “Parliament should wield the war power

  1. While I agree fully that it’s better for the parliament and not the executive branch to make the decision to go to war, I think that in our current state of society if invading libya was put past parliament we would be there by now.

    Democracies are different than monarchies in a sense that a large driving force behind democratic wars is based on idealism, such as humanitarianism. Not only does this trigger people’s wants to help others but through the same incentives we have going on in the welfare state, people dont think they have to pay much because it is spread amongst everyone. When the costs are low and the (emotional) benefits are high it’s only inevitable.

    This is why i think things would work better under an ancap society since the incentives of paying are put solely on the war mongers that preach these kind of wars which would make people think twice about forgoing that new TV just to feel better about helping libya.

  2. As a CONSTITUTIONALIST I hold it is not the problem of Cabinet to make a decision if it should to war or not but that they do so unconstitutionally(!), this as constitutionally it makes not one of iota difference if Cabinet decides to go to war because unless and until the Governor-General publish in the Gazette a DECLARATION OF WAR there is no power for the Minister of Defence (As a Prime minister has no such powers at all!) can act upon this.
    Hence the invasion into Iraq and Afghanistan were unconstitutional and so unlawful and so those who purported this committed war crimes, mass murder, crimes against humanity, etc. See also my blog at http://www.scribd.com/InspectorRikati

  3. Just to add another comment. The Framers of the constitution were concerned that for the sake of elections, etc, it was better not to have this power to declare war in the hands of politicians but with a Governor-
    General who then had to consider the interest of the “general public”! To declkare WAR or PEACE is a prerogative power that lies with the Queen and for this in Australia by the Queens representative the Governor-General! As such, even if the Queen delcared war it doesn’t apply to the Commonwealth of Australia as the Governor-General can only do so on her behalve!

  4. Sigh.

    No, that is completely the wrong way to go about things, because it is attempting to create a legalistic mechanism to enforce things. The difficulties are much the same as those courts face with providing “injunctions for specific performance”, which is why they prefer to recast things into a form in which other sanctions are used to provide the desired effect rather than trying to compel certain things to be done. It only works until it doesn’t work, and then – so much for the law, welcome to realpolitik.

    And that is just precisely how the power of the purse and the various army and navy acts, mutiny acts, etc. used to function while the internal structure of the Westminster System actually was operating to hold the British Constitution together – a constitution in the sense that it described how things worked rather than providing instructions which, if followed, would control things. Ministers of the Crown could indeed use the armed forces at their pleasure – but, in practice, those would come apart in their hands if votes of funds didn’t come through (in the days before they could just print money); the armed forces couldn’t be used just to levy unauthorised taxes because (in that state of the art of war and bureaucratic and financial machinery) they couldn’t levy enough in the face of resistance to cover the costs; and desertions would have been widespread in the absence of the yearly renewed various army and navy acts, mutiny acts, etc. (unless troops were confined to barracks and ships kept away from resupply, which would have made them ineffective). Parliament was acting as a sort of taxpayers’ union, in the days when the franchise and those practical realities worked to make it such and it had not yet undergone capture by the state-oriented political interests it was there to regulate.

    So it was in the old days, until well into the 19th century in practice and until years after the Second World War in theory. While it lasted, there was never a legal requirement for parliamentary consent for any operations – but there was always the practical impossibility of any sort of sustained material operations, abroad or otherwise, without parliamentary support. And so, it never was tested after 1688; its availability was enough, after the earlier demonstrations of how things would go in any test.

  5. My brief understanding of things is:
    The Governor General is meant to be in charge of the armed forces, while Parliament authorizes the funding. Naturally this should be the counter check.

    The problems which have occurred for a period of time is the Governor General is becoming more and more of a puppet of the Prime Minister, and one should be currently very afraid should Bill Shorten become Prime Minister, being the son-in-law (definitely the father of one of Quintine Bryce’s grandsons).
    Solution sort here is finding the ideal path for a political independent Governor General free from the whims of the Prime Minister of the day.

    The two second points are related to the Defense Forces themselves, where if Australia is attacked, they may defend before the need of a re-call of Parliament, and the other often use, the services for Disaster relief, as recently as with the North Queensland Cyclones.

    The summary of what I belief is the current principle appears to make sense, (as under the direction of the Governor General), but the problem occurring is the independence of his/her position, without fear or favor of the Prime Minister, is the actually jeopardizing of abuse of the military.

  6. As a CONSTITUTIONALIST I comment on basis of the constitution and it’s embedded legal principles and not as a personal point of view. The Framers of the Constitution made clear that the Governor-General was to be appointed by the Queen upon recommendation of the Home Office at 10 Downing Street, and couldn’t be by the Australian government as then it would interfere with the independence of the Governor-General. Therefore the constitution provides for an independent Governor-General which is to be a person from Great Britain! With Isaacs (1931) the legal link failed to continue and hence jeopardised all legislation to be co0nstitutionally valid.
    The Framers of the Constitution made clear that while the governor-General was the commander of the armed forces he could do nothing if the Minister of Defence refused to deploy soldiers and/or the Parliament refused to fund the armed forces and so as such it had to be so to say a partnership between all parties concerned.
    The Framers of the Constitution made clear that i9f the Commonwealth of Australia was under attack, without having to wait till guns are booming, then no DECLARATION OF WAR was needed because the attack itself was to be deemed a DECLARATION OF WAR against the Commonwealth of Australia.
    From this we therefore have that constitutionally that is if the Commonwealth of Australia is not under direct attack by an enemy then Australian troops cannot be involved in attacking any foreign nation unless and until the
    Governor-General has published in the gazette a DECLARATION OF WAR as it is a sovereign prerogative power that not be exercise by the Ministers, neither therefore by the prime minister.
    .
    It means that the armed invasion into Afghanistan and Iraq were unconstitutional and therefore those authorising and participating with it all acted in defiance of what is constitutionally permissible, and should hence forth be dealt with for war crimes, crimes against humanity, terrorism, etc. See also my documents published in regard of this at my blog http://www.scribd.com/InspectorRiakti
    .
    Let’s be clear about it that the Cabinet cannot overrule constitutional limitations!
    .
    It is not the constitution that lacks proper limitations but rather that we lack a constitutional council to ensure that no government/Parliament exceeds constitutional powers and the High Court of Australia isn’t the right forum for this because it only can act if someone places a case before it then even then if the judges involved are so to say crooks then they will deny to accept filing of an application, this was clear in March 2003 when they refused 4 times my 75(v) application on basis to prevent the armed invasion into Iraq by Australian troops without the Governor-General having published in the Gazette a DECLARATION OF WAR!

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