New Zealand Yearbook of New Zealand Jurisprudence
Last Updated: 19 April 2015
War and Peace and the Commonwealth Constitution: A Critical Review of the
Dr Imtiaz Omar*
In recent times the defence power of the Commonwealth Constitution has been
relied upon by the Executive and Parliament in Australia
for purposes of
overseas troop deployment, enacting anti terrorism legislation and other
measures. With reference to anti-terrorism
legislation reliance has also been
placed on the external affairs power for giving effect to UN Resolutions, and
bilateral and multilateral
treaties. The use of the executive defence power and
Parliament’s reliance on the defence and external affairs powers to enact
specific legislation are, however, debatable.
This paper argues that the exercise of the executive power under s 61 of the
Constitution in so far as it relates to the ‘prerogatives’
and peace must be accountable to Parliament. In this regard the nature of the
‘prerogative powers’ in the constitutional
context of Australia is
reviewed and it is suggested that use of these powers must always be subject to
The latter part of the essay subjects the use of, and constitutional
justification offered for, the use of the defence power of the
Australia to a critical review. Comparative references from other constitutional
systems are included in this regard.
The article concludes on the note that it
is imperative that legislation be adopted to control and regulate the use of the
defence power. The broad structure and contents of such a proposed law
is included at the end.
The article does not deal with the issues surrounding the justification of
war and aggression in International Law. Likewise, it is
also not concerned with
the UN Charter and its application to armed conflicts. There are however some
brief comparative references
to the UN sanctioned use of force in the first Gulf
War and the absence of UN approval for the Iraq War in
* LLM Sask, Phd ANU, Senior Lecturer, School of Law,
University of New England, Australia. This a revised version of a paper
“Use of the Defence
Power under the Australian Constitution”
presented at the ALTA Conference, Waikato University, Hamilton, New Zealand, 4-9
ii. EXECUTIVE AND LEGISLATIVE POWERS UNDER THE COMMONWEALTH CONSTITUTION
TO DEPLOY TROOPS IN FOREIGN COMBAT
In 1991, the First Gulf War, Australian troops were deployed at the Iraq
borders in pursuant of a UN Resolution to force Iraq to withdraw
sovereign country, Kuwait, that it had annexed earlier by force. The executive
decision then was approved by Parliament. The
Executive, during the course of
the combat and the continuing deployment of Australian troops in the First Gulf
War, kept the Parliament
informed at regular intervals about the course of
events. Details of the justification for the Cabinet decision, and the decision
on recalling Parliament to debate and reaffirm the decision for the deployed
troops to engage in active combat were stated in Parliament
by Prime Minister
Bob Hawke in the following terms:
On 4 December I formed the House that following a decision of Cabinet,
Australia was prepared to provide forces to participate in
operations under the
United Nations Security Council resolution 678, should that become necessary. On
17 January, after consulting
senior Ministers, I gave effect to that decision by
authorising our naval task force in the Gulf to participate in such operations.
I then formally notified the Leader of the Opposition (Dr Hewson) and the
Governor-General of the Government’s action. I subsequently
Mr Speaker, and the President of the Senate, to recall Parliament so that I can
report to the Parliament and to the
nation on this grave issue, and so that
members of parliament can have the opportunity to express their
In 2003, Australia’s decision to participate in the Iraq war by the
deployment of troops and subsequent active combat by them
was reached by the
Prime Minister John Howard and his Cabinet in pursuance of quite controversial
arguments put forward by the USA
relating to the threat posed by Iraq. These
included the possession of WMD, ‘regime change’, ‘pre-emptive
the need for a ‘coalition of the willing’, and so on.
Despite inconclusive debates in Parliament about participation
in combat, the
Executive surreptitiously reached a decision to deploy troops. It was only
subsequently announced that the troops
had been sent to the Persian Gulf. Prime
Minister John Howard expressed in categorical terms that the decision to commit
foreign combat was an Executive decision, but that Parliament should
be informed, and a resolution passed in support of that decision.
The government has now authorized our defence forces, which were predeployed
to the gulf ... to take part in the coalition operations
... Under our system,
this decision lies with the executive of government: the cabinet.
1 Commonwealth, Parliamentary Debates, House of Representatives,
21 January, 1991 (Prime Minister Bob Hawke). http://parlinfoweb.aph.gov.au/piweb/view_document.
aspx?ID=359570&TABLE=HANSARDR 21 January, 1991
Nevertheless, it is appropriate that the parliament, at first opportunity,
have the chance to debate this motion. It is essential
that the reason for that
decision be made plain to the representatives of the people and that they have a
full opportunity to debate
them and to have their views
The sequence of events were:
1. On 11 October 2002, US Congress authorizes an attack on Iraq.
2. On 23 January 2003, Australian troops leave on ‘forward
deployment’ to the Middle East. It is to be noted here that
on recess then and was not due to sit until 4 February 2003. However, unlike the
Government’s decision in the
1991 Gulf War to recall Parliament, no such
action was taken then.
3. 16 March 2003: Howard committed the 2,000 deployed troops to assist in
the US-led invasion of Iraq.
4. The decision to deploy troops was made by the Prime Minister and his
Cabinet without consultation, and prior approval of Parliament,
even in the form
of a prior ‘parliamentary resolution’ to this effect.
5. The announcement of the decision for troop deployment and Australia’s participation in the Iraq war was made by the Prime Minsiter on 18
March 2003 at a press conference at Parliament House in
6. Later, on the same day, 18 March 2003, the Prime Minister informed the
House of Representatives of this decision.4
7. The Governor-General was not involved in any way in this decision.
There was only a press release on the same day, 18 March, in which the
Governor-General described the action by the Government to
commit members of the
Australian Defence Force to support a US-led coalition to disarm
8. On 18-20 March 2003, Parliament debated the deployment of
Australian troops to war.
9. On 20 March 2003, the House of Representatives passed a motion
2 Commonwealth, Parliamentary Debates, House of Representatives, 18 March 2003 (Prime
Minister John Howard).
3 See G. Lindell, ‘The Constitutional Authority to deploy Australian Military Forces in the
Coalition War against Iraq’ (2002) 5 ConstL&PolicyR 46, 47.
5 Lindell, ibid, quoting www.gg.gov.au/speeches/textonly/media/2003/mr030318.html.
It is to be noted that in 1991 too, the Governor General was notified of the
Government’s action to commit Australian troops
to war after the decision
... [endorsed] the Government’s decision to commit Australian Defence
Force elements in the region to the international coalition
of military forces
prepared to enforce Iraq’s compliance with its international obligations
under successive resolutions of
thee United Nations Security Council, with a
view to restoring peace and security in the Middle East region
10. On the same day, 19 March 2003, the Senate passed a motion to the effect
that the Senate:
... believes that in the absence of an agreed UN Security Council resolution
authorising military action against Iraq, there is no
basis for military action
to disarm Iraq, including action involving Australian Defence Force.
... opposes the decision of the Australian Cabinet and the President of the
United States of America ... to commit troops to an attack
... calls on the Government to immediately return Australia’s 2000
Defence Force personnel home.7
11. Part of the contingent of the Australian Defence Force still remains in
Iraq (24 June 2005. There were calls by the Opposition
in 2004 to return the
troops by Christmas, but this demand was rebuffed by the Government.
iii. war, prerOgativeS, execUtive and LegiSLative pOwerS
The only express provisions of the Commonwealth Constitution that are relevant for an enquiry on the legitimacy and use of the defence, war, or national emergency powers of the Executive and the Legislature are ss 51(vi),
61 and 68.
Section 51(vi) is referred to as the ‘defence power’ of the
Commonwealth. Under the provisions of s 51(vi), the Commonwealth
authorized to legislate with respect to the “naval and military defence of
the Commonwealth and the several States”.
The laws that Parliament passes
under the ‘defence power’ have always been held to be subject to
judicial review. The
High Court has in the past employed criteria including
pre-war, actual war, post-war, and peacetime situations to examine the
of legislation adopted under the defence power. In
Australian Communist Party v Commonwealth
6 Commonwealth, Parliamentary Debates, House of Representatives, 18 March 2003.
7 Commonwealth, Parliamentary Debates, Senate, 18 March
(Communist Party case),8 among the several justices who
held the Communist Party Dissolution Act 1950 (Cth) invalid as not being
connected to defence in the
prevailing peacetime situation, McTiernan J
It is of course for Parliament to measure the emergency confronting the
Commonwealth and to take the legislative measures which are
required to meet it.
The only question for the Court is whether the measures have a reasonable
relation to the emergency, and on
that question the Court naturally gives very
great weight to the opinion of parliament; but it would not allow the opinion of
to be the decisive factor, that is to determine the matter finally
and conclusively, without deserting its own duty under the
Section 61 is in the following terms:
The executive power of the Commonwealth is vested in the Queen and is
exercisable by the Governor-General as the Queen’s representative,
extends to the execution and maintenance of this Constitution, and of the laws
of the Commonwealth.
Under old interpretation, the Governor-General, exercising powers under s 61
was only enabled to carry out those functions as the
King (Monarch) might assign
to him/her. Indicative of this approach was the majority view in Commonwealth
v Colonial Combining Spinning and Weaving Co.10
[The Governor-General] is a special agent with power to carry out the
Constitution and laws, and such powers and functions as the
King may assign to
The minority, Isaacs and Starke JJ took a broad view of s 61 as a transfer to
the GG of all the ‘inherent powers’ of the
Crown in relation to the
Commonwealth of Australia. The ‘inherent powers’ view was continued,
among other cases, by Evatt
and McTiernan JJ in R v Burgess; Ex parte
Henry,12 and Dixon and Evatt JJ in Official Liquidator of E O
Farley Ltd v FCT.13 These views were clarified in later cases
beginning the decision in Barton v Commonwealth,14 where Mason
J explained the scope of the executive power in s 61 as including “the
prerogative powers of the Crown, that is,
the powers accorded to the Crown by
the Common law.”
8  HCA 5; (1951) 83 CLR 1.
9 Ibid, 207.
10  HCA 62; (1922) 31 CLR 421.
11 Ibid, 454.
12  HCA 52; (1936) 55 CLR 608.
13  HCA 13; (1940) 63 CLR 278.
14  HCA 20; (1974) 131 CLR 477.
It was only beginning the decision in Barton v Commonwealth that the
High Court has attempted to examine the constitutional and doctrinal basis of
the executive power in s 61 of the Commonwealth
Constitution. This is
highlighted by Professor Winterton.
The executive power of the Commonwealth has largely been neglected, both by the High Court and by commentators, receiving scant attention in omparison to the Commonwealth’s legislative and judicial powers. The High Court has examined executive power on fewer than 10 occasions – principally three cases in the Whitlam era: Barton v Commonwealth ... the AAP case ... and Johnson v Kent ...- most recently, in the Bicentennial Authority Act case in
1988 ... (The power has, of course, also arisen in several Federal Court
cases, most notably the Tampa case in 2001.)15
In Victoria v Commonwealth and Hayden (AAP case),16
although the majority justices did not explain s 61 as incorporating
‘prerogatives’, their reasonings were along the same
lines as in
Barton v Commonwealth. Justice Mason, for example observed that:
there is to be deduced from the existence and character of the Commonwealth
as a national government and from the presence of ss 51(xxxix)
and 61 a capacity
to engage in enterprises and activities peculiarly adapted to the government of
the nation and which cannot otherwise
be carried on for the benefit of the
In Davis v Commonwealth (Bicentennial Authority Act
case),18 three of the majority justices in their joint judgment,
quoting observations in precedents, highlighted that:
s 61 confers on the Commonwealth all the prerogative powers of the Crown
except those made by the Constitution except those that are
exercisable by the States under the allocation of responsibilities made bt the
Constitution and those denied by the Constitution
The discussion now turns as to what are ‘prerogatives’, and
whether s 61 should be explained as an embodiment of
15 G. Winterton, ‘The Relationship Between Commonwealth Legislative and Executive Power’  AdelLawRw 3; (2004) 25 AdelaideLR 21, footnotes omitted.
16  HCA 52; (1975) 134 CLR 338.
17  HCA 52; (1975) 134 CLR 338, at 396.
18  HCA 63; (1988) 166 CLR 79.
19 Ibid, at 93-94.
Nature of Prerogatives
Sir Frederick Pollock made the following observations about the basic nature
Prerogative is nothing more mysterious than the residue of the King’s
undefined powers after striking out those which have been
taken away by
legislation or fallen into desuetude.20
In AG v De Keyser’s Royal Hotel Ltd,21 a similar view
was followed, albeit in obscure way, that legislation overruled a common law
rule or principle. The Law Lords in this
decision, however, differed in their
views on the relationship between the legislative and the prerogative powers.
De Keyser is taken as an authority for the conceptual bases
that statute law may abrogate or regulate the prerogative power.
A distinction can be made here between the rule of a ‘common law’
prerogative being overruled by a statute and the place
‘prerogative’ in an explicitly written Constitution, such as the
Commonwealth Constitution. The issue in this regard
is whether in its
interpretation and application, the executive power under s 61 of the
Commonwealth Constitution or for that matter
any other constitutional provision
should be explained in terms of the ‘common law’.
Prerogatives and Section 61 of the Commonwealth Constitution: Conventional
As pointed out earlier, Mason J in Barton v Commonwealth,22
explained the scope of the executive power in s 61 as including “the
prerogative powers of the Crown, that is, the powers accorded
to the Crown by
the Common law”. It has however been pointed out:
The Crown’s prerogative powers, once thought to be
“inherent” or “organic” are now probably best understood
as arising at common law. Such powers are not readily
In his detailed study of executive and parliamentary powers in Australia,
Professor Winterton has observed:
20 Editorial Note to V St Clair Mackenzie, ‘The Royal Prerogative in War-time’ (1918) 34
LawQR 152, quoted in T. Blackshield & G. Williams, Australian Constitutional Law and
Theory (2002) 518.
21  UKHL 1;  AC 508.
22  HCA 20; (1974) 131 CLR 477.
23 Blackshield & Williams, supra n 20 at 516.
All the prerogatives of the Crown, except those inapplicable to Australian
conditions ... have been inherited by either the Commonwealth
or the States, or
both ... .24
Regarding the incorporation of the prerogative in the Commonwealth
Constitution he points out that:
The prerogative is incorporated in s 61 of the Constitution ... by virtue of
its having vested ‘the executive power of the Commonwealth’
‘the Queen’. When seen against the British constitutional
background, the vesting of executive power in the Crown
was, in effect, a
shorthand prescription or formula, for incorporating the prerogative - which is
implicit in the legal concept of
‘the Queen’ - in the Crown in right
of the Commonwealth. ... .25
It has also been argued that:
Certain powers held by the executive are recognized by the common law. While
these powers, too, are nowadays regarded as incorporated
in s 61, they may also
exist independently of and antecedently to it, since the Constitution is
conceived of as coming into force
“under the Crown”, that is, as
presupposing the antecedent existence of the Crown and its
Critique of the Semantics of ‘Prerogatives’ and their
Since the Commonwealth Constitution is an explicitly written document detailing the powers, scope and limits of the principal organs of government
- the Executive, Legislature and Judiciary - the fundamental question arises whether s 61 of the Commonwealth Constitution or for that matter any other provision should be explained in terms of the ‘common law’ and the
In this regard, Professor Sawer has asserted that:
It is more consonant with the present status of Australia to treat the
Constitution as the sole source of power, and the position
of the monarch as
derived from its provisions – not even partly from the prerogative –
and the Constitution can be so
In regard to royal documents like ‘Letters Patent’ and ‘Instructions under the
Royal Sign Manual’, he concluded that:
24 G Winterton, Parliament, the Executive and the Governor-General: A Constitutional
Analysis, (1983) 49.
26 Blackshield & Williams, supra n 20 at 516.
27 (1976) 52 Current Affairs Bulletin 20, quoted in Blackshield & Williams, supra n 20 at
It is certain that in so far as the royal documents ... conflict with provisions
of the Constitution, they are invalid.28
More recently, in the context of the contemporary scope of the prerogative
power in Australia and its displacement by statute, French
J has forcefully and
persuasively affirmed that s 61 of the Commonwealth Constitution cannot be
interpreted in terms of ‘prerogatives’:
In his leading opinion in
Ruddock v Vadarlis (Tampa case),29 French J
The executive power of the Commonwealth under s 61 cannot be treated as a
species of the royal prerogative ... While the executive
power may derive some
of its content by reference to the royal prerogative, it is a power conferred as
part of a negotiated federal
compact expressed in a written Constitution
distributing powers between the three arms of government reflected in Chapters
and III of the Constitution and as to legislative powers, between the
polities that comprise the federation. The power is subject,
not only to the
limitations as to subject matter that flow directly from the Constitution but
also to the laws of the Commonwealth
made under it.30
Justice Beaumont agreed with French J. In the circumstances of the case,
which involved a controversy on the purported use of the
‘prerogative’ power in the face of the statutory provisions of the
Migration Act 1958 (Cth), Black CJ, while not definitively ruling on this
issue, made the following observations in the light of precedents:
This survey amply supports, in my view, the conclusion that it is, at best
doubtful that the asserted prerogative continues to exist
at common law. The
affirmative assumed that the prerogative no longer exists may well be
In “All at Sea – Constitutional Assumptions and ‘The
Executive Power of the Commonwealth,’”32 Bradley Selway
(later Justice, Federal Court of Australia) is critical of French J’s
view. This critique is based first, on
the argument that, save for the views of
Gummow J in Re Ditford; Ex parte Deputy Commissioner of Taxation,33
and Re Residential Tenancies Tribunal; Ex parte Defence Housing
Authority,34 the assertion of French J lacks substantial
authority. Secondly, Selway points to precedents where it was held that
29  FCA 1329; (2001) 183 ALR 1.
30 Ibid, 49.
31 Ibid, 12.
32 (2003) 31 FedLR 495.
33 (1988) 19 FCR 347, 368-9.
34 (1997) 190 CLR 410, at 469-70.
the reference to ‘executive power’ in s 61 of the Commonwealth
Constitution includes the prerogative and is subject to
the common law
limitations upon it.35 Commentaries on s 61 are also highlighted by
Selway’s critique of French J’s position notwithstanding, what
needs to be considered though is that the place of prerogatives
Australian constitutional system has not been satisfactorily explained from a
constitutional doctrinal perspective. In this
regard, Professor Winterton, after
considering earlier precedents and some recent decisions of the High court has
More than half a century later, the High Court acknowledged that s 61 had never
been defined ... Indeed, its scope was not ‘amenable to exhaustive definition’
... As recently as 2000, the Court stated that the scope of the power
‘remains open to some debate’... .37
The attempted explanations of prerogatives is largely derived from
assumptions that can only be described as arising from ‘originalist’
35 FedLR, supra n 32 at 497. Among the precedents cited by him is the recent High Court decision in Oates v Attorney General (Cth)  HCA 21; (2003) 197 ALR 105.
36 The commentators cited in this regard are Winterton, supra n 24 at 27-34; J. Thomson,
‘Executive Power, Scope and Limitations: Some Notes from a Comparative Perspective’ (1983) 62 TexasLR 559; L. Zines, The High Court and the Constitution 4th Ed (1997) 251-
37 G. Winterton, ‘The Relationship Between Commonwealth Legislative and Executive Power’  AdelLawRw 3; (2004) 25 AdelaideLR 21, 24, footnotes omitted. Among the older precedents, Winterton cites the views of Isaacs J in Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) CLR 421; Evatt J’s views in R v Hush, Ex parte Devanny  HCA 64; (1932) 48 CLR 487; and Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63
CLR 278. The most recent decision cited is R v Hughes (2000) 202 CLR 535 (per Gleeson
CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
38 Broadly speaking, originalism is an approach to interpretation that focus on the intention of the framers of the Constitution. An allied concept is ‘interpretivism’. Interpretivism as a judicial technique means that:
judges deciding constitutional issues should confine themselves to enforcing norms that are
stated or clearly implicit in the written Constitution. J. Ely, Democracy and Distrust (1981) 1.
In the USA, there is a wealth of literature on the choice of originalist or
non-originalist interpretation. For a general account
of the debate see, e.g.,
J. Goldsworthy, ‘Originalism in Constitutional Interpretation’
(1997) 25 FedLR 1.
has been repeatedly disavowed by the High Court.39 Originalist
interpretation is also based on arguments of the antecedent existence of the
Crown and its powers before the Commonwealth
Constitution came into operation.
The thrust of this approach is that the Constitution should be conceived of as
coming into force
“under the Crown”, and on the legislative
supremacy of the UK Parliament at 1901. In this regard, Professor Lindell has
In 1900, the Constitution was legally binding because of the status
accorded to British statutes as an original source of law in Australia and also
because of the supremacy accorded
to such statutes. 40
The issue of legal sovereignty highlighted here is however different from the
‘sovereignty of the people’. In this regard, Professor Zines has
It is clear ... that the sovereignty of the people is not a substitute for
the sovereign British parliament, but something quite different
... [T]he is no
reason to limit the doctrine of sovereignty of the people to a period to a
period when British sovereignty over Australia
‘sovereignty’ is regarded as a wrong word to use for the people of a
colony, there is no reason why the Commonwealth
parliament and government could
not from its beginnings, have been regarded as subject to a people that was,
within the limits of
colonial ststus, ‘supreme’, and with all the
implied freedoms that representative government requires.41
The comments of Mason CJ in Australian Capital Television Pty Ltd v
Commonwealth42 are relevant in this
39 In this regard, it has been observed:
From an early date the High Court refused to have regard to the Convention Debates for the purposes of ascertaining the intention of the authors: Municipal Council of Sydney v Commonwealth  HCA 50; (1904) 1 CLR 208, at 213-14; L. Zines, The High Court and the Constitution
4th Ed (1997) 480 n 23.
For a discussion on the High Court’s views on originalist and other approaches to interpretation see, for example, H, Burmester, ‘The Convention Debates and the Interpretation of the Constitution’ in G. Craven (ed.), The Convention Debates 1891-1898: Commentaries, Indices and Guide (1986) 25.
40 G. Lindell, ‘Why is Australia’s Constitution Binding? – The Reasons in 1900 and Now, and the Effect of Independence’ (1986) FedLR 29, 32 (italics in original).
41 L. Zines, The High Court and the Constitution 4th Ed (1997) 395.
42  HCA 45; (1992) 177 CLR 106.
Despite its initial character as a statute of the Imperial Parliament, the
Constitution brought into existence a system of representative
Australia in which the elected representatives exercise sovereign power on
behalf of the Australian people.43
In the next section, the question of the exercise of the executive power
under s 61 of the Commonwealth Constitution, in the context
of responsible and
representative government, is explored.
iv. reSpOnSiBLe gOvernment and SectiOn 61 OF the cOnStitUtiOn
It is accepted that in a parliamentary-executive type of government, or the
system of responsible government, the Executive is accountable
and Ministers of the ruling Government are individually and collectively
responsible to Parliament. It is also accepted
that the Cabinet deliberations
are secret. The decisions of the Cabinet are however, put in an official legal
form by the Executive
Council. The functions of the Executive Council, with the
Governor-General or his/her deputy presiding, is to put into legal form
decision of the Cabinet.44 The constitutional distinction between a
Cabinet decision and an Executive Council decision is important since Cabinet
not judicially reviewable but an Executive Council decision can be
subject to review.45
For the sake of argument, even if s 61 can be explained in terms of the so
called ‘prerogatives’, Professor Lindell acknowledges
it is clear that under the Westminster system of government Parliament may
legislate to regulate the exercise and limit the exercise
The question that needs to be addressed in the context of this essay then is,
parliamentary regulation of the so called ‘prerogative’
inhering in s 61 to committing Australian troops to foreign combat can be
exercised without prior parliamentary approval.
43 Ibid, 138, quoted in Justice RS French,‘The Constitution and the People’, in R. French, G.
Lindell & C. Saunders (eds.), Reflections on the Australian Constitution (2003) 60-85, 73. It should be noted here that ‘popular will’ of the people in establishing the Commonwealth Constitution is acknowledged by Lindell, supra n 40 at 30.
44 For a discussion on the powers and processes of the Executive Council see, for example, Constitutional Commission, Final Report, Canberra, AGPS, 1988, at 333-4.
45 In this regard, see Minister for Arts Heritage and Environment v Peko-Wallsend Ltd (1987)
75 ALR 218, 225 (Bowen CJ); 227 (Sheppard J); 247-8 (Wilcox J).
46 G. Lindell, ‘The Constitutional Authority to deploy Australian military Forces in the Coalition
War against Iraq’ (2002) 5 ConstL&PolicyR 46, 47.
Parliamentary Approval for Deployment of Troops
From the sequence of events noted at the beginning, the Government sent troops for ‘forward deployment’ to the Middle East (‘Persian Gulf’) in January
2003 without parliamentary approval, and then on 16 March the Prime Minister
Howard committed the already deployed troops to combat
in conjunction with the
US for invading Iraq. It was a Cabinet decision, and the Governor General was
not involved in the decision.47
Three issues arise for consideration in this context. First, the issue whether the Cabinet decision is an exercise of the so called ‘prerogative power’ that may be argued as included in s 61 (that is beyond parliamentary regulation on a pre- or post- basis). Secondly, that the Parliament was presented with a
‘fait accompli’, and the House of Representatives approved
the Government decision by ‘Resolution’. Thirdly, although the House
of Representatives being dominated by the majority party of the ruling
Government approved of the troop deployment, the Senate disapproved
decision. It might be noted here that in a parliamentary-executive model of
government (or responsible government) like that
of Australia, the lower House
is always dominated by the ruling party; thus it is not difficult to get a
resolution of this nature
passed. What is important, however, is that
parliamentary approval was not taken prior to the deployment of troops and to
them to combat afterwards.48
The position of Canada can also be highlighted in this regard. It
participated in the Gulf War against Iraq in 1991. Like Australia,
Canada has a
parliamentary- executive model of government, and the Canadian Constitution has
no express provision requiring prior
approval of Parliament for deploying troops
in foreign combat. In the 1991 war, however, the Canadian Government sought
of the Canadian Parliament to participate, even though the
deployment of Canadian troops was in pursuance of UN Security Council
resolutions of 1990-1991.49
It may be accepted that, in many instances, the decision to commit troops for
foreign combat can be the based on ‘secret intelligence
other information that cannot be revealed to Parliament or be the basis of open
deliberations. That was not the
case in 2003 when the Executive in
47 It should be noted here that, in the 1991 Gulf War too, the Governor-General was informed after the Cabinet decision authorizing Australian troops to participate in the Gulf War.
48 Prior parliamentary approval was also not taken by the Australian Government in the 1991
49 This has been highlighted by Lindell, supra n 46 at 47.
decided to engage in the Iraq War. It can therefore be contended that prior
approval of Parliament was essential in terms of the constitutional
established by the Commonwealth Constitution.
It is also a matter of concern that since March 2003 to date, no regular
parliamentary approval was sought for continuation of the
Australian troops in combat in Iraq.50
Section 68 and the Commander in Chief Argument
There is an argument that the Governor General plays a role in deployment of
Australian troops in a war, and committing them to combat.
The argument is based
on s 68 of the Commonwealth Constitution. Section 68 provides:
The command in chief of the naval and military forces of the Commonwealth is
vested in the Governor General as the Queen’s representative.
It has been pointed out, however, that this role is essentially a formal or
Even if s 68 were to be interpreted as a source of the exercise of the so called
“prerogative power”, the decision to commit troops to combat in Iraq in March
2003 was not a decision of the Governor-General in Council.
In this context, it is instructive to examine how provisions similar to s 68
of the Commonwealth Constitution are entrenched in the
Constitution of the
President, Congress and the War Power in the US Constitution
The Constitution of the USA establishes a presidential-executive system of
government. Among the powers of the President is his/her
role as Commander in
Chief. Article II, s 2 of the US Constitution provides:
The President shall be Commander in Chief of the Army and Navy of the United
States, and of the militia of the several States, when
called into the actual
service of the United States ...
50 At the beginning of the 2003 Iraq War, the following comments were made in the Senate by the Senator Robert Ray:
As defence minister during the previous Gulf War ... any request by the then opposition for briefings were met. Major General John Baker, then head of DIO, briefed the then opposition leader, Mr John Hewson, on at least a weekly basis. I am sure that this government will use that as a precedent and follow suit.
Commonwealth, Parliamentary Debates, Senate, 19 March 2003, (Senator Robert Ray).
51 In this regard see Coutts v Commonwealth  HCA 40; (1985) 157 CLR 91. The decision in Coutts v
Commonwealth is briefly discussed in L. Zines, supra n 41 at 250, n
Professor Tribe has explained this provision as in the following way:
The Framers, in all likelihood, thought that bestowing this title upon the
Chief Executive did little more than place him at the apex
of the military
Although the US establishes the President as Commander in Chief, it reposes
in Congress the power to declare war.53 Until the War Powers
Resolution was adopted in 1973,54 the US Congress acquiesced in
decisions of the President on foreign military campaigns. Under the provisions
of the War Powers Resolution, the constitutional power of the Congress
has been linked to the Commander in Chief clause so as to restrain executive
and use of US armed forces.
[I]n the War Powers Resolution of 1973 ... Congress linked its powers under
the necessary and proper clause ... with the Commander
in Chief clause so as to
restrain executive deployment of United States armed forces. It did so by
enumerating the circumstances
in which deployment abroad is permitted, and by
limiting such deployment in any situation to sixty days unless Congress, in the
passes authorizing legislation ... 55
It is because of this requirement that the US President sought prior Congress
approval for deployment of US troops in the 1991 and
2003 Iraq wars. This was
granted by Congress.
The Constitution of the USA establishes a presidential-executive type of
government. Although under the assumptions of a presidential-executive
government and the provisions of the US Constitution, the President and members
of the Executive are ‘responsible’
to the Congress, the War
Powers Resolution of 1973 explicitly requires congressional approval to
deploy US troops abroad and commit them to combat. It is acknowledged that the
War Powers Resolution of 1973 is based on this entrenched ‘war
power’ of Congress. Nonetheless, the Executive did not seek approval for
in foreign combat until 1973, and there is scope for an argument that
such approval is not required within the scheme of presidential-executive
The US system tends to separate the role of the Legislature and the Executive
(embodied in the President) as much as possible. Still
so, the War Powers
Resolution makes the President accountable to Congress in relation of
52 L. Tribe, American Constitutional Law (1988) 231.
53 Constitution of the USA, Article II, s 8.
54 87 Stat. 555, Public Law 93-148, 93d Cong H.J. Res. 542, adopted over presidential veto on 7 November 1973.
55 Tribe, supra n 52 at 234-235.
‘war power’. In a parliamentary-executive system of government
(responsible government) like Australia where executive
responsibility to the
Legislature is a pivotal feature, the case for parliamentary accountability is
much more persuasive.
It has already been pointed out that in the 2003 Iraq conflict, the Cabinet
took recourse to dubious tactics by first ‘pre-deploying’Australian
troops and then committing them to combat. Parliament was presented with a
fait accompli afterwards and the House of Representatives passed a
resolution supporting it. Since, in the absence of express provisions in the
Constitution or in any other law, it can be controversial whether parliamentary
approval is a strict requirement for deployment of
Australian troops in foreign
combat and the timing for such approval it is imperative that there be
legislation in this regard. This
is considered in the next section.
v. a prOpOSed deFence pOwerS act
The discussion has persuasively indicated that are significant controversies,
in terms of constitutional law and theory, about the
power of the Executive in
Australia to deploy troops in foreign combat. Professor Lindell, for example,
has agreed that:
[I]t is true that serious doubts have been raised regarding the
constitutional ability of the parliament to control the exercise of
which form part of the executive power of the Commonwealth under s
It is best that these contentious questions are resolved by clarifying the
issues in legal terms. This can be done into two ways –
constitutional amendment or by ordinary legislation by recourse to ss 51(vi) and
51(xxxix). In view of the cumbersome procedure
for amending the Commonwealth
Constitution and the poor record of success of efforts in this regard,
“[i]t would be more realistic
to achieve the change by the passage of
In this regard, while recognizing the existence of ‘prerogatives’, Professor
Lindell has observed that:
56 G. Lindell, ‘Authority for War’ (May-June 2003) About the House 23, 24.
consistent with the traditional understanding of the British system of
government, legislation can be enacted to strengthened parliamentary
over the executive branch of government in the exercise of its prerogative
There is no disagreement therefore that legislation may be adopted to control
and regulate the executive power of war and deployment
of Australian troops to
foreign combat. The proposed legislation may variously be called the Defence
Powers Act, the Emergencies
Act or the War Powers Act. With regard to the
Commonwealth Parliament’s role in regulating the exercise of the executive
to deploy troops in combat, some guidance can be drawn from the
unsuccessful Bill that the Australian Democrats proposed on 27 March
from the War Powers Resolution of 1973.
In the Defence Amendment (Parliamentary Approval for Australian
Involvement in overseas Conflicts) Bill 2003, the Australian Democrats
sought to amend the Defence Act 1903 (Cth) by requiring a proclamation of
emergency by the Governor-General and approval by Parliament for deployment of
Among the various provisions so the Bill, parliamentary approval
meant approval of both Houses of Parliament. The Bill also required
that, if not
in session, Parliament would be summoned to consider approval of the
proclamation within 2 days of the proclamation
The executive-legislative relationships in the Australian and US
constitutional schemes are different. The entrenched provisions in
Constitution on the Congressional power of war, and the President’s
commander in chief role are also at variance with
the express provisions of the
Commonwealth Constitution and their conventional understanding. Despite the
disparateness of the executive-legislative
relationships in the Australian and
US constitutional schemes, some provisions of the US War Powers Resolution
of 1973 are also instructive for a future Defence Powers Act in
Under the provisions of the US War Powers Resolution of 1973, there
must be consultation between the President and Congress. Section 2(a), which
makes provisions in this regard, has been
interpreted to mean that the
consultation is to occur in ‘every possible instance’ before
American troops are introduced
58 Ibid. In this regard, the observations of L. Zines, supra n 41 at 262-263, 267 and 269-270, are highlighted. Attention is also drawn to the observation of the High Court in Brown v West (1990) 169 CLR 195, 202:
Whatever the scope of the executive power of the Commonwealth might otherwise be, it is susceptible of control by statute.
59 Commonwealth, Parliamentary Debates, Senate, 27 March 2003
into hostilities.60 The President may, however, act without prior consultation in some situations. In such an event, the President is required to submit, within
48 hours, a written “report” to Congress stating:
(a) the circumstances necessitating the introduction of United States
(b) the constitutional and legislative authority under which such
introduction took place; and
(c) the estimated scope and duration of the hostilities or involvement. [s
Section 5(b) lays down that:
Within sixty calendar days after a report is submitted ... the President
shall terminate any use of the United States Armed Forces
unless the Congress
(1) has declared war or has enacted a specific authorization for such use of
United States Armed Forces, (2)
has extended by law such sixty-day period, or
(3) is physically unable to meet as a result of an armed attack upon the United
Section 5(b) incorporates some flexibility by introducing provisions to the
effect that the “sixty-day period shall be extended
by no more than an
additional thirty days if the President determines and certifies to the Congress
in writing that unavoidable military
necessity respecting the safety of United
States Armed Forces requires the continued use of such armed forces in the
course of bringing
about a prompt removal of such
In the proposed Defence Powers Act for Australia, reference might be had to
the Constitution of a newer Commonwealth country with
a parliamentary executive
type of government, India. After repeated ‘abuse’ by the Executive
of entrenched and detailed
emergency powers, the Indian Constitution has been
progressively amended to strengthen legislative control of executive emergency
powers, albeit after a proclamation of emergency has been made by the
Executive. Since the incorporation of amendments to Article 352 of the Indian
Constitution, it is stipulated that every proclamation of emergency made by the
President (on Cabinet advice) must be approved by
both Houses of Parliament
within one month, failing which the ‘proclamation’ shall
cease to operate. Provisions have also been made for situations when Parliament
is not in session when a ‘proclamation’ is made, or where the
60 Tribe, supra n 52 at 235, referring to the Grenada incident in 1983, and to the use of US
forces to evacuate Americans and South Vietnamese from Saigon in 1975.
61 In the First Gulf War (1991), and in the 2003 Iraq War, there was prior
Congressional approval under s 2(a), ostensibly to avoid
the strictures of ss 4
Parliament takes place during the one-month period. The current
provisions of Article 352 also provide for periodic review of the operation of a
‘state of emergency’.
A proclamation of emergency once approved by
Parliament can only operate for a six month period. Any continuation beyond the
period would require new parliamentary approval. Specific
parliamentary majorities are required for approving both an original
and any subsequent extension. The President must revoke a
proclamation of emergency, or its variation, or continuance, if Parliament
passes a resolution to that effect.62
The pre-deployment, or ‘forward deployment’ as the Government
termed it, of Australian troops to the Middle East in January
2003, the Cabinet
decision to commit them to actual combat on 16 March, and the announcement of
the presence of Australian SAS troops
on 21 March 2003, as soon as the US-led
invasion began, can be described as dubious and an ‘abuse’ of
and contrary to constitutional rule. Parliament was faced with
a fait accompli, and although the House of Representatives, dominated by
the Government, passed a resolution supporting the action, the Senate rejected
The decision of the Australian Government to enter the Iraq war was not based
on secret information that could not be made public.
As discovered later, the
claims of WMD, the threats posed by Iraq, and similar assertions, were all
conjured. There was therefore
ample scope for wide parliamentary deliberations
and a prior agreement between Parliament (both Houses) and the Executive to
a decision whether it was justifiable to go to war.
In order that such instances may not be repeated in future, it is imperative
that legislation like the proposed Defence Powers Act,
by whatever name it may
be called, be adopted. In drawing up such a law it may be instructive to look at
some of the provisions of
the Australian Democrats Bill of 2003, the Defence
Amendment (Parliamentary Approval for Australian Involvement in Overseas
Conflicts) Bill 2003, the US War Powers Resolution of 1973, and the
Indian Constitution. The adoption of such an Act would put at rest the
controversy and confusion over the executive
and legislative powers, and their
interrelationship in a war or external emergency situation. It would also put an
end to the semantics
of the so called ‘prerogative’ of war and its
conclusive displacement by a statutory rule.
62 For a detailed study of emergency powers in the Indian Constitution see, for example, I.
Omar, Emergency Powers and the Courts in India and Pakistan
In 2003, Australia was not faced with Iraqi aggression, nor was it acting in self defence. In situations like these, the proposed statute should provide for substantive consultation between the Executive and Parliament, and approval by both Houses of Parliament for deployment of troops and committing them to combat. There might be situations where secret intelligence is concerned and immediate action is required. Prior approval would not then be a pre-requisite. But like the relevant provisions of the US War Powers Resolution of 1973 and the Indian Constitution, the decision should be conveyed to Parliament promptly, and supported by both Houses of Parliament. The sixty-day time limit for approval of a proclamation in extraordinary circumstances required by US War Powers Resolution, and the thirty-day time limit for approval of an emergency proclamation under all circumstances, are sufficient time- limits for parliamentary approval. A time period along these lines should be incorporated in the proposed Act. Australian troops sent to Iraq in 2003 are still there in combat operations, and debates in Parliament about a time frame for their return have been overtly partisan and politically opportunistic. About the middle of 2004, there were stormy debates in Parliament between the Opposition, who wanted the troops back before Christmas, and the insistence of the Government on the continuing threat in Iraq justifying presence of Australian troops. This became an election issue. In the proposed Defence Powers Act for Australia, it is imperative therefore that provisions be included for a specific time frame for a war emergency to continue. These provisions can be along the lines of the US War Powers Resolution of 1973 and the Indian Constitution.