With the announcement of Australia’s involvement in dropping aid to Kurdish fighters engaged against Islamic State extremists in northern Iraq, questions have again arisen about who should control Australia’s military powers.

The most recent actions have been taken under the federal government’s prerogative power to deploy military force. The Greens and independent MP Andrew Wilkie have argued that the exercise of these powers should be preconditioned on parliamentary debate and authorisation.

The government’s war powers

Under Section 61 of Australia’s Constitution, the executive power of the Commonwealth is vested in the Queen, exercisable by the Governor-General. By convention, this power is exercised on the recommendation of the Governor-General’s ministers. (The few exceptions, known as the “reserve powers”, are not relevant here.)

The Commonwealth’s executive power includes those powers vested in the Governor-General by the Constitution, powers vested in the government by legislation, and other powers that are supported by the common law.

This last category includes the prerogative powers. Prerogatives are those powers that are unique to government: powers that non-government entities, such as individuals and corporations, do not share. This category also includes the common law capacities: the powers enjoyed by everyone, which include the power to spend money, enter contracts and hold land.

A number of different types of executive power are relevant when we talk about Australia’s military, or war, powers. The first is Section 68 of the Constitution. This vests the command-in-chief of the naval and military forces of the Commonwealth in the Governor-General.

The second is the ancient prerogative power to deploy the armed forces overseas, including in war and other conflicts. This is an unusual and strong prerogative power.

Most prerogative powers are non-coercive. But under the war prerogative, the executive can undertake military engagements, including the deprivation of liberty, the infliction of intentional harm and even death.

Today, this prerogative power is supplemented by provisions in the Defence Act such as Section 50C, which states that:

Members of the Army may be required to serve either within or beyond the territorial limits of Australia.

The final power that is relevant is what is commonly referred to as the “nationhood” executive power. The nationhood power includes all those powers that the Commonwealth necessarily exercises as a sovereign nation.

In the past, this power has been found to support legislation criminalising sedition, and legislation enacted in response to the economic emergency caused by the global financial crisis.

Relationship between the war powers and parliament

The Commonwealth government does not require parliament’s approval before it decides to exercise its prerogative and deploy armed forces or declare war. However, the principle of parliamentary sovereignty mandates that parliament controls the executive and executive power. As the High Court has explained:

Whatever the scope of the executive power of the Commonwealth might otherwise be, it is susceptible of control by statute. A valid law of the Commonwealth may so limit or impose conditions on the exercise of the executive power that acts which would otherwise be supported by the executive power fall outside its scope.

The prerogative powers and the Commonwealth government’s “nationhood” power are both susceptible to control by parliament; they can be changed and even abolished. However, a 2001 Australian Federal Court decision, involving the deployment of SAS troops onto the MV Tampa to prevent it from docking at Christmas Island with its cargo of rescued asylum seekers, indicated that the statutory displacement of the prerogative is not easily achieved.

In the decision, Justice Robert French – now Chief Justice of the High Court – held that while parliament could displace a non-statutory power, it would not be easily found that it had done so, particularly if the power was:

… intimately connected to Australia’s status as an independent, sovereign nation state.

There is also a question as to whether parliament could control or curtail the exercise of an executive power that is expressly conferred by the Constitution, such as the command-in-chief power vested in the Governor-General by Section 68. While it is not entirely certain, it would seem that parliament may control the exercise of these powers, but may not remove or curtail them to a significant degree.

What this means is that the Australian parliament may pass legislation that would require parliamentary approval for the deployment of military forces, or even require statutory backing to do so. However, these requirements would have to be explicit to displace a prerogative as important as the government’s war powers and must not go so far as to remove the commander-in-chief power.

Should going to war require parliamentary approval?

Parliament could enact legislation that sets up a pre-approval process for the exercise of the war powers. However, such legislation would have to be passed through both houses. Passage through the House of Representatives appears unlikely (for now), with bipartisan support for maintaining the current position.

Maintaining the current position certainly has benefits. Relying on the prerogative allows the government to act decisively and respond flexibly to emergencies when they arise.

AAP/Dan Peled

Parliamentary approval will add (sometimes significant) delay to such responses. Parliament may not be sitting at the time a crucial decision is required. Parliamentary debate and procedure will itself lead to additional delay. Parliamentarians may be hampered in debating and coming to a decision by lack of access to highly classified information.

Parliamentary authorisation may limit the government in the prosecution of armed hostilities. This may give rise to the need for additional authorisation to be sought if the initial approval proves insufficient. There is also the possibility that by involving parliament, partisan politics could colour the decision-making process, and military actions may be approved or refused based on matters other than the national interest.

There is, nonetheless, much to be said for a parliamentary approval process. Involving parliament in this important government decision would bring a much larger, more representative institution into the decision-making process. This brings different perspectives to the debate and increases the legitimacy of any decision in the eyes of the wider public.

Involving parliament would allow the assertions of factual positions, such as the now fabled existence of weapons of mass destruction in Iraq in 2003, to be tested in a public forum.

A number of countries, including Ireland, South Africa, the United States and the Netherlands, now require some level of parliamentary involvement in the decision to deploy military force. Parliamentary participation in this decision comes in many forms.

Debate about whether the Australian parliament should be involved must be undertaken in a considered manner. This would preferably occur at a time when military deployment is not imminent, and the debate is not coloured and clouded by that conflict.