20 September 2009

War Powers Bill

On 13 February 2008 Western Australian Greens Senator Scott Ludlam introduced a Private Members’ Bill to limit the prerogative power of the Executive to commit Australian forces to overseas service without the consent of the Parliament. The Bill, which may be downloaded from here, is entitled the Defence Amendment (Parliamentary Approval of Overseas Service) Bill [No. 2]. It is

A Bill for an Act to amend the Defence Act 1903 to provide for parliamentary approval of overseas service by members of the Defence Force.

Work on the Bill was initiated by then leader of the Australian Democrats, Senator Andrew Bartlett who, at the time of the Australian commitment to the invasion of Iraq in 2003, commented:

By sending troops to the region, the government has guaranteed Australia will be at war, if it occurs. This is happening without a vote of Parliament, without the support of the Australian people and without any case being put to explain this insanity.

With the departure of the Australian Democrats from the Senate the work on the Bill was taken over by Senator Ludlam, who in his Second Reading Speech criticised the 2003 commitment of Australian troops to Iraq without consulting the people’s representatives in Parliament and said:

The responsibility of sending Australian men and women into danger and quite possibly to their deaths should not be solely on the shoulders of a handful of leaders, but more broadly shared by policy makers and the public they represent. While citizens do delegate responsibilities to leaders by electing them into power, the democratic system includes an ongoing forum for discussion where leaders must provide reasoning and accounting for their decisions, the Parliament. Citizens that do regularly participate and contribute to public debates through engaging their representatives are denied their democratic right to participate in the gravest decision of sending the country into war, which often has implications far into the future.

Under the provisions of Senator Ludlam’s Bill, members of the Defence Force would not be permitted to serve beyond the territorial limits of Australia except in accordance with a resolution which is in effect and agreed to by each House of the Parliament, authorising the service.

There is a provision for deployments in emergency circumstances. The Governor-General may by proclamation declare that an emergency exists requiring ADF service beyond the territorial limits of Australia, and authorise such service to occur. The Governor-General can only make such a proclamation on the basis of written advice from the Prime Minister explaining the circumstances of emergency which render it inexpedient to seek a resolution from the Parliament before deploying members of the ADF beyond the territorial limits.

Any such proclamation and the advice which led to it must be published within 24 hours of the proclamation being made. The proclamation must be laid before each House of the Parliament within 2 days of being made, together with a report setting out:

(a) the advice on which the proclamation is based

(b) the reasons for the proposed deployment

(c) the legal authority for the proposed deployment

(d) the expected geographical extent of the proposed deployment

(e) the expected duration of the proposed deployment, and

(f) the number of members of the Australian Defence Force proposed to be deployed.

It is explicit in the Bill that it would not preclude temporary attachment of individuals to the defence forces of other countries, their service as part of an Australian diplomatic or consular mission, their service on ships or aircraft not engaged in hostilities or on operations during which hostilities are likely to occur, service outside Australia for the purposes of their education or training, or service outside Australia for purposes related to the procurement of equipment or stores.

No doubt opponents of the measure will argue that it is impractical, or too restrictive, or that it will impede the nation’s defence in some way. Senator Ludlam informed the Senate in his Second Reading Speech that the Bill would bring Australia into conformity with principles and practices utilized in other democracies like Denmark, Finland, Germany, Ireland, Slovakia, South Korea, Spain, Sweden, Switzerland and Turkey, where troop deployment is set down in constitutional or legislative provisions, and that some form of parliamentary approval or consultation is also routinely undertaken in Austria, the Czech Republic, Italy, Japan, Luxembourg, the Netherlands and Norway.

Section 8 of the United States Constitution states that the Congress shall have the power to declare War. The subject is a matter of intense debate in the United Kingdom, and likely to become more so.

I am currently discussing with a couple of colleagues the extent to which the requirement to consult the Parliament would have impeded the timely deployment of Australian forces on previous occasions. This will be discussed in a subsequent post.

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