DEFENCE - Who declares war for Australia?

Our 1901 Constitution fails to answer this most basic of questions, says George Williams IF YOU want to know who can declare war for Australia, you might think to start with the Australian Constitution. After all, it sets out the basic rules of our system of government, and there are few exercises of public power more important than committing a nation to war. Unfortunately, the Constitution does not supply the answers. Section 51 empowers the federal parliament to pass laws about ‘naval and military defence’ and section 68 entrusts the Governor-General, as the representative of the Queen, with the command of our defence forces. The Constitution is otherwise silent. It says nothing about who can declare war for Australia or the circumstances in which we might go to war (including whether Australia can use military force in breach of international law as part of a unilateral strike). There is certainly nothing resembling article 9 of the Japanese Constitution, which states that ‘the Japanese people forever renounce war as a sovereign right of the nation’. It is not surprising that much is left unsaid in our Constitution. It is not a people’s constitution, but a document framed in the nineteenth century for governments operating according to the conventions and practices of that era. It was not a time that contemplated popular involvement in decisions about war, let alone that Australia might consider itself bound by the rules of a body like the United Nations. If we were bound, it was to the foreign policy of United Kingdom. Without a clear answer from the text of our Constitution, many would argue that the decision to go to war against Iraq should be made by parliament or the people. However, the unwritten practices of our Constitution direct otherwise. They suggest that the decision is one for the Prime Minister and Cabinet alone. John Howard can have parliament debate the issue or arrange for a popular vote. However, he need not consult parliament or the people and the decision will ultimately be made in the secrecy of the Cabinet room. The Governor General will then be informed as the Commander in Chief, and by convention must follow the decision or face immediate dismissal. The situation is different in the United States. President Bush is not as free to take his country to war and is subject to Congress. Article 1 of the United States Constitution vests the power ‘to declare war’ in Congress and not the President. On the other hand, article 2 states that the President is the ‘commander in chief’. The President’s power has been used without the approval of Congress to engage in undeclared wars in countries such as Vietnam and has given rise to an ongoing debate over which branch of government possesses the war powers of the nation. Any tension between Congress and President has now been resolved over whether to go to war in Iraq. In October of last year, Congress authorised the President, in its words, ‘to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq’. The resolution enables the United States to go to war with or without the backing of the United Nations Security Council. By contrast, our Constitution fails to set out any deliberative process for determining whether Australia should go to war in Iraq. Even though there has been debate in Parliament, this appears to have played little or no role in the decision of the Prime Minister to commit advance forces. While Parliament will not always be the right body to determine such an issue, especially where an immediate decision is required based upon confidential security information, there may be a role for Parliament as a decision maker where there are serious doubts about the justification for unilateral pre-emptive action. The power to declare war is an example of how our 1901 Constitution fails to set out even the most basic rules and procedures. As Australia, or more particularly John Howard, faces the decision of whether we should go to war, we should refect on how our Constitution has again proved ill equipped to meet demands of a modern and open democracy. Perhaps it is time that it was updated to mention how our system of government actually works. Perhaps it is also time that the Constitution reflected popular desire for consultation and open deliberation about a decision that will affect Australia’s standing in the world community for many years to come. Professor George Williams is director of the Gilbert and Tobin Centre of Public Law, University of New South Wales. This text was first broadcast on ABC Radio National’s Perspectiv