In other nations, Presidents and Prime Ministers can declare war…but they must get full approval of their legislatures by various mechanisms. In Australia, the power to declare and wage war is shrouded in uncertainty, without the benefit of mandated endorsement and/or review by Parliament. CLA is calling for a national debate, then new legislation, so all Australians know who can take them to war, and how.

4 Mar 08 – See the Prime Minister’s response to our letter.

The following is the text of the letter to the Prime Minister:

Who can declare war?

The Prime Minister
Mr Kevin Rudd
Parliament House

Dear Prime Minister

CLA believes that the time of a change of Australian Government is the ideal opportunity to re-assess fundamentals of how Australia makes national decisions in time of war/conflict or in allied or similar situations, with or without emergency overtones, involving the presence or potential presence and involvement of Australian forces overseas.

We believe there should be national discussion and debate, followed by new legislation. We request that you commit to that debate during 2008, and legislation during 2009, on behalf of the Australian Government.

The issues for the debate/legislation include:

Who and/or what body is entitled by the Constitution and legislation (and/or customary practice) to take the decision (ie, not in terms of the Governor-General’s role) that Australia:

  • declares war
  • sends troops to another country with a view to a. invasion, b. military intervention, c. peace-keeping, and/or d. any other role?

At what level of ‘troop’ involvement do the formal decision-making rules come into effect (1 adviser, 10 advisers, 1 company, etc?).
We note that the British Prime Minister has promised to legislate to put UK parliamentary control of war and war-related decisions beyond doubt. We request that the Australian Prime Minister to do likewise.

What role does the Australian Parliament have:

  • before, during or after any such decision;
  • in voting funds to support any relevant activity; and/or
  • in voting to withdraw support and/or funds for any activity?

Are one-line expenditure votes, including those for war and associated activities, illegal under the Australian Constitution? Even if not illegal, should expenditure on war and similar/associated activity be itemised in greater detail than normal annual Budget reporting?

What role, if any, does the High Court have in determining the legitimacy or otherwise of Australia’s troop engagement?

Does any Australian treaty compel military involvement by Australia in certain circumstances (if so, which is it or are they), or is Australian military involvement always at the discretion of the nation, however the involvement decision is taken?

Has there ever – apart from the period leading up to finalising the Constitution more than 100 years ago – been national debate and discussion simultaneously on all these issues?

CLA believes that, following a period of national discussion and debate, there should be a referendum to decide who has the powers outlined above.

Thank you for your attention to our request.

Yours sincerely

Dr Kristine Klugman

In the above questions, the work ‘security forces’ and ‘police’ may also be included as well as ‘troops’ and ‘forces’ in terms of the need for debate/discussion and referendum/legislation.

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