Did you know that only one person makes the decision in Australia to send troops to fight wars? That decision may be based on fear of imminent attack, in response to a request for support from an ally, a first strike against a perceived enemy, or perhaps just to keep a powerful ally on side.
Prime minister responsible for decision to send troops
Regardless of the reason for war, in Australia the decision to declare war or send our military forces to fight overseas rests with just one person - the prime minister.
Section 68 of the Australian Constitution vests the commander-in-chief role of military forces in the governor-general, who acts on the advice of ministers. The power to send troops overseas is contained in the Defence Act 1903.
In fact, the constitution does not mention the office of prime minister, merely that the monarch's representative in Australia acts on the advice of the Federal Executive Council, which comprises all ministers.
Since Federation in 1901, executive power has been held by the prime minister and cabinet, and they hold power by convention, similar to the British system of government.
There is no requirement in the Australian constitution for the government to gain the approval of parliament to deploy military forces in conflicts overseas, nor to formally declare war.
How the decision to send troops to war works in practice
In practice, the prime minister consults ministers in the cabinet, and may even consult parliamentary leaders from other parties, but the PM does not, under law, have to consult anyone.
In recent conflicts such as the Gulf War and Afghanistan, the government has committed forces using administrative provisions in section 8(2) of the Defence Act, bypassing the role of the governor-general, who alone has the constitutional power to send armed forces to overseas conflicts.
How Australia historically made the decision to send troops
The constitution does not define who is responsible for declaring war or making the decision to send troops to armed conflicts.
In the early years after federation in 1901, it was thought Australia could not declare war without the approval of Britain, because the British monarch is Australia's head of state.
In 1914 when Britain declared war on Germany, Australia as part of the empire was automatically also at war. In 1939 prime minister Robert Menzies declared that Britain had declared war on Germany "and that as a result Australia is also at war."
Since then, Australian forces have died fighting in military conflicts in Korea, Malaya (today's Malaysia), Borneo, Vietnam, Iraq, East Timor and Afghanistan.
Before troops were deployed in some of these conflicts, the issues were discussed in parliament. But in none of them was parliament required to vote for or against sending troops to the conflict.
Failed bids to change legislation for government approval to send troops
There has been much debate on whether a parliamentary vote should be required before sending Australian troops to a conflict. (Please see Explainer: Australia's war powers and the role of parliament, The Conversation, 2 September 2014.)
Since 1985 there have been several attempts by the Australian Democrats and Greens to change the Defence Act, to require the government to obtain approval from parliament before it could send troops to warlike actions. These bills all failed.
This included a failed bill in 2003 to make war dependent on a parliamentary vote. (Please see Defence Amendment (Parliamentary approval for Australian involvement in overseas conflicts) Bill 2003.)
Supporters of the move argue that involving parliament in the decision-making process would be democratic, to allow the testing in a public forum by the people's representatives of the arguments for and against sending young Australians to fight overseas.
Opponents argue that involving parliament would delay military deployment and is unnecessary when the government is already formed by the majority of votes in parliament, which would back the prime minister's decision. (Please see Coalition warns against requiring parliamentary vote to commit Australia to war, The Guardian, 5 October 2022.)
Parliamentary committee to review war powers to send troops
But now a federal parliamentary committee is reviewing how Australia makes decisions to send our military into international armed conflicts, and how to improve transparency and accountability in the exercise of these powers. (Please see Committee to review international armed conflict decision making, Parliament of Australia, 30 September 2022.)
Federal parliament's defence subcommittee has accepted 70 submissions from the public and will hear expert testimony. It will also look at how other countries decide to send troops into conflict.
According to a study by the parliamentary library, Russia, Britain, Canada, Greece, South Africa and New Zealand do not need the approval of their parliament. The United States, Germany, France, Ireland, Italy and the Netherlands do to some degree.
Michael McHugh
Employment law
Stacks Law Firm
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