Constitutional Law of Australia
Answer:
Introduction:
Since 1901, the Constitution of Australia and its Defense legislation were never in necessity of the government to obtain permission of Parliament in taking decisions regarding organization of defense forces out of the country or to declare war with other countries. Several attempts have been made by the Democrats and Greens to implement the involvement of the government in taking such decisions. In 2010, Australian Green's Bill related to the Defense Amendment Bill was rejected by the Committee of the Defense and Trade Legislation and the Senate Foreign Affairs stating it to be an incredible piece of legislation. In this paper, we will discuss the validity of authorizing the operation of the armed forces without the permission of the Parliament. We will consider Commonwealth legislation and common law authorities in this regard also.
Discussion
The government of Australia was uncertain about the possibility of declaring war against other countries without permission of the British Government. However, under Section 51(vi), the Parliament has the power to legislate the defense power in order to make sure that all the chief decisions related to the war must be taken only after the approval by the Parliament.[1],[2] The Constitutional Section 61 mentions that the Queen possesses the administrative power of the Commonwealth and these powers can be exercised by the Governor General on behalf of the Queen. The Governor General shall take advice from Executive Council appointed in the Commonwealth government under Section 62 of the Constitution.[3]
The right to take decisions regarding the declaration of war, arrangement of troops as well as the declaration of peace in the earlier times has become a part of the administrative power of the Commonwealth which is exercised by the Governor General on recommendations of the Executive Council. However, the Prime Minister and Cabinet take decisions related to the war and deployment of military out of the country without taking into consideration the decisions of Governor General or the Federal executive Council.[4]
The Charter of the United Nations requires approval by the UN Security Council before taking decisions related to war and military operations by member countries. Article 24 of the United Nations Charter states that member nations of the Security Council must carry out their duties on guidance and behalf of the Security Council.[5],[6] In September 2008, Senator Scott Ludlam initiated the Defense Amendment Bill to make essential the approval by Parliament before deploying troops in other countries but Defense and Trade Legislation Committee rejected the bill.[7]
In Declaration of War against other countries, there are no legal provisions in Australia. However, Section 4 of the Defense Act states that the meaning of war is any kind of invasion or attack by enemy or military forces. In an interview held in September 2014 with ABC Radio, Julie Bishop, the Foreign Minister of the country claimed that the government in power could take decisions unilaterally regarding deployment of troops in other country.[8] In past also, for all the wars such as World War I, the UN Wars, and Second Gulf War in 2003, all the essential decisions regarding sending military forces were taken by the then Prime Minister and Cabinet (McCormack, 2016).[9]
The Constitution of Australia empowers the Queen to take decisions with the advice of the Governor General who in turn acts on advice of the Prime Minister and the Executive Council which includes all ministers and secretaries of the Parliament.[10] However, the power of the executive government can be regulated by the Parliament as it is responsible for framing laws related to the naval and military defense control of the Commonwealth.[11] Therefore, the government should take approval by the Parliament before taking decisions related to declaration of war and deployment of troops in other nations. Under obligations of international law, being a member nation to the UN Charter, Australia should follow the preamble of the Charter. It states that international conflicts should be resolved peacefully and deployment of armed forces should be the last resort that too for the welfare of the international community and not for the benefit of individual nation.
Conclusion
In Australia, the Constitution provides the government the right to take decisions related to declaration of war and deployment of military forces and does not require parliamentary approval for such decisions. However, taking into consideration the legislations of international law, the fact is clear that the use of violence must be the last option according to UN Charter. The government in power should take such decisions along with the permission of the Parliament.
References
Grey, Jeffrey, A Military History Of Australia (Cambridge University Press, 1999)
McCormack, Tara, "The Emerging Parliamentary Convention on British Military Action and Warfare by Remote Control" (2016) 161 The RUSI Journal
McKeown, Deirdre and Roy Jordan, "Parliamentary Involvement In Declaring War And Deploying Forces Overseas" (Department of Parliamentary Services, Parliament of Australia, 2010) <https://www.aph.gov.au/binaries/library/pubs/bn/pol/parliamentaryinvolvement.pdf>
Nzelibe, Jide, "Are Congressionally Authorized Wars Perverse?" (2010) 59 The Stanford Law Review<https://www.stanfordlawreview.org/print/article/are-congressionally-authorized-wars-perverse/>
Ramsey, Michael D., "Presidential Declarations Of War" 37 UC Davis Law Review<https://poseidon01.ssrn.com/delivery.php?ID=0141170640981250920701100260680040690250200660180530530811010960651191100550281010601040350401131121101020
7000010506109001308009211508401007412609910510209702306005012509207508111200611707706908102302401608509911300
4085005024096078095024011064&EXT=pdf>
Taylor, Claire and Richard Kelly, "Parliamentary Approval For Deploying The Armed Forces: An Introduction To The Issues" (House of Commons Library, 2008) <https://researchbriefings.files.parliament.uk/documents/RP08-88/RP08-88.pdf>
United Nations, "Charter Of The United Nations - United Nations Treaty Collection" (United Nations, 1945) <https://treaties.un.org/doc/publication/ctc/uncharter.pdf>
<https://www.mapor.org/confdocs/absandpaps/2012/2012_papers/4M2_Wang_paper.pdf>
ABC News, Fact Check: Who Has A Say In Sending Australian Troops To War? (2014) <https://www.abc.net.au/news/2014-09-08/julie-bishop-correct-on-australia-history-at-war/5710696>
Aust LII, Commonwealth Of Australia Constitution Act - Sect 51Legislative Powers Of The Parliament [See Notes 10 And 11] (2016) Austlii.edu.au <https://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html>
Goot, Murray, Public Opinion And The Democratic Deficit: Australia And The War Against Iraq (2003) Australianhumanitiesreview.org <https://www.australianhumanitiesreview.org/archive/Issue-May-2003/goot.html>
Williams, George, Now To Say, Never Again (2008) On Line Opinion <https://www.onlineopinion.com.au/view.asp?article=7512>
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