Parliament and the use of force

There is no more serious decision for Government than to commit Australian forces to conflict. It is not, I believe, one that is ever taken lightly. But, should it be ceded to both houses of parliament?

The answer is no.

It’s the longstanding position of the Australian Labor Party that it is the responsibility of the executive to deploy Australian forces. It is a view I share wholeheartedly. The executive carries the moral and political responsibility for this most difficult decision. And it bears the weight of that through its conscience and the ballot box. The parliament does not.

Governments are elected to govern. While it’s true that legislation must be passed by both houses to make laws, it doesn’t follow that both houses have an equal standing in all matters. The Senate cannot introduce or amend a bill that imposes taxation or appropriates money for the ordinary annual services of government. Our system recognises certain essential and fundamental responsibilities that the government of the day must carry out. And engagement in military action is one of those.

Any requirement for parliamentary approval would need legislative amendments or new laws, which would involve a great range of possibilities and spelling out in detail the meaning of key terms, such as ‘warlike’. Some of those possibilities have been addressed in previous legislative proposals (in 1985, 2003, and 2008). Another was presented this year and defeated in the Senate on 4 September.

There are a number of lessons from these proposals, which can be found in the report of the Senate Foreign Affairs, Defence and Trade Legislation Committee inquiry into the 2008 proposition.

The report shows that a lot depends on how much the proponents want to include in the requirement for parliamentary approval and how much to exempt. If, for example, the proponents wanted to exempt deployment of troops for the direct defence of Australia, the law would have to allow for the dispatch of military forces to take part in warlike actions outside Australia to interdict an invasion force, thus producing complicated legislation.

Does warlike encompass possible actions taken by peacekeepers? Difficulties also arise with efforts to spell out what constitutes an emergency, when military forces need to be deployed immediately. If the proponents do not wish to exempt any possible commitment, then we could face the absurd situation that the arrival of an invasion force or a missile assault would prompt only a parliamentary debate.

Moreover, is approval from both houses required for the initial commitment of Australian forces only, or would it be required through the course of operations, following the attainment of milestones, and for withdrawal?

Fans of parliamentary involvement typically make much of the approval requirements in other countries. But different countries have different circumstances and different military environments: pointing to one country may provide an example of acceptance of a general principle, but it doesn’t prove that it can be followed by everyone else. And there are other countries that do not have such arrangements. How do we learn from those countries and, most importantly, what should this country do?

Some proponents argue that, in practical terms, including the Senate as an essential part of the process simply means that Australian forces could be committed to war if both major parties agreed (having usually a combined majority in the Senate) and, in most cases (depending on the makeup of the Senate cross bench), could not be committed if the major parties disagreed. Creating an elaborate process of consideration by both houses to achieve such a ‘Grand Coalition’ approach would be inefficient and unnecessarily time-consuming.

Other difficulties have been identified in relation to the treatment of classified material essential to an understanding of the situation in which military action is contemplated, and the implications of military forces being committed under some emergency provision but at the risk of being recalled within a short time.

Parliament should, of course, debate any decision and I welcome the recent opportunity for members to make statements on Iraq. I also welcomed the update reports introduced by the Gillard Government on the Afghanistan mission.

However, the lesson I take is that the effort to craft legislation would always be incomplete as more and more instances arise of unintended consequences or exemptions to be granted.

The evidence from past inquiries strongly supports the view that a workable legislated requirement is unlikely to be achieved, is unsound in principle and irretrievably dogged by practical difficulties. There is much common sense in our current arrangement and no compelling argument to change it.

Originally published on the Australian Strategic Policy Institute’s blog, the Strategist. http://www.aspistrategist.org.au/parliament-and-the-use-of-force-a-bridge-too-far/

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