Foundation for National Renewal     The "Model Constitution" Activity

Federal Election October 2004: Which Candidates Trust the People?

Introduction

1. There is currently much discussion in the community about the possibility of Australia becoming involved in a war with Iraq. So it is perhaps opportune to again tackle an issue that is included in our Constitution Contents List, and that is the focus of contemporary debate. The topic listed in our draft 'Contents List' is 'Emergency and War Powers of Government'.

2. The primary question to be resolved is whether we are prepared to leave it to our elected representatives to make vital decisions, such as committing the country to war, or whether such decisions should be the subject of a referendum.

The Current Situation

3. Our current Constitution (s. 68) designates the Governor General as the Commander-in-Chief of the Armed Forces. It is my understanding that this provision was included to provide a check on the powers of the Government of the day and to provide a single entity for decisions in times of dire emergency. However, like so much of our Constitution, this provision has been gradually disregarded until we now have a situation in which the role played by the Governor General is purely ceremonial.

4. In the CCF Annotated Constitution (p.71), Professor Cheryl Saunders maintains that, "The common law recognises that executive government has the power to make war and that this power can be exercised without authority from Parliament." This is a deplorable state of affairs. Under the system of government we currently suffer, this means that a Prime Minister can decide to commit Australia to war. As much as it can be argued that a PM is unlikely to make such a decision alone, the fact is that only his Ministers or the GG are in any position to advise otherwise, and they are appointed by the PM and are beholden to him for their positions.

5. Under the system of government currently operating in Australia, we should recognise that, although (and because) there is no mention of a Prime Minister in the Australian Constitution, the PM has almost dictatorial power. A rogue PM could do enormous harm before he could be brought under control. Our 'Model Constitution' should, and can, provide a much better framework for taking such important and far-reaching decisions as going to war. To do less is to invite a repeat of the chaos and division experienced during Australia's involvement in the war in Vietnam, or worse. It seems to me we should devise a system that will ensure Australia is committed to war only when that is the clear will of the People.

6. In devising a system to cope with the question of going to war, we should also bear in mind that there are other situations in which the Armed Forces might be committed such as in times of natural disaster and/or to assist in United Nations Peacekeeping operations. In these circumstances, you might prefer such decisions be left to the Parliament. However, such decisions should perhaps be subject to veto by the Governor General, in his capacity as the Commander in Chief, as a check on any hasty action by a government motivated by party-political expediency.

7. Furthermore, circumstances can be envisaged in which the urgent deployment of our Armed Forces is necessary to counter an immediate threat such as an invasion. It is even possible to envisage a situation in which Australia is invaded during a Parliamentary recess when all the politicians are back in their constituencies. That is, the Government and the Opposition are dispersed throughout the country. Perhaps the Constitution should empower the Governor General to authorise urgent deployment in these circumstances. However, the Constitution should perhaps require Parliamentary debate and endorsement within a specified time-frame. Furthermore, it could be argued the Constitution should also include a requirement for a referendum to be conducted if such commitment is considered to be ongoing and/or likely to escalate.

8. In the circumstances confronting the USA in 1963 when the Soviet Union began deploying inter-continental missiles in Cuba clearly targeting the USA, it was a situation calling for immediate action. Fortunately, the President of the USA at the time had the necessary powers and was a thinking, rational and capable person who handled the situation in such a way that the Soviet Union backed down without a shot being fired. However, it is clear that, if the Soviet Union had not backed down, immediate action would have been required.

9. The proposal currently being contemplated by the Bush Administration for a pre-emptive strike against Iraq is, in my opinion, an entirely different circumstance. On the evidence currently publicly available, there is no justification for being the aggressor and launching an attack on Iraq. Even if one accepts the assertion that Iraq has acquired Nuclear, Biological and/or Chemical (NBC) capabilities, it cannot be assumed that Iraq will use them. Rather than destroy the western world's reputation as the defender of world peace by being the aggressor in Iraq, it seems to me that the lessor of the two evils is to wait until after Iraq has used them. (However devastating that might be on the people so targeted.) In the meantime, of course, the Iraqi People should be made aware that an NBC strike by Iraq on any nation will trigger a devastating response by the whole of the western world against Iraq and that Iraq can expect a similar response if any terrorist organisation was to use NBC weapons supplied by Iraq. From Australia's point of view, a referendum could be conducted now to gauge the support of the People for a war against Iraq in those circumstances and/or in the current circumstances.

10. Despite our best efforts to the contrary, any war against Iraq could easily escalate into World War 3, if the Muslim nations choose to view an attack on Iraq as an attack on Islam. If we are to endure WW3, it is essential that we be seen, and see ourselves, as the defenders of world peace, not the destroyers of world peace.

11. There is, of course, the argument that one should not shut the stable door after the horse has bolted. That is, Iraq should be stopped before they acquire a substantial capacity to wage NBC warfare. However, it could be argued that the USA, Britain, France, Russia and perhaps Israel have acquired such a capability. What moral justification could there be for causing WW3 simply to prevent Iraq from doing the same? However, if the international community is of the opinion that preventing Iraq from acquiring a substantial NBC capability is a legitimate aim, then surely it is the role of the UN to pursue such an objective.

12. Recent history provides us with powerful argument for a referendum before the commitment of Australia to war. If a referendum on the question of Australian support for South Vietnamese resistance to communism had been conducted in 1960, and if that referendum had received the approval of the Australian People, there would have been no anti-Vietnam protest movement. On the other hand, if the referendum had rejected Australian involvement, there would have been no requirement for an anti-Vietnam movement. Either way, destructive division of the Australian community would have been avoided. The primary aim of a war referendum is to ensure the nation is united in its commitment and remains so for the duration. This is absolutely vital to the successful prosecution of a war.

What do other Constitutions say?

13. The Swiss Constitution (Art. 173) provides that the Federal Parliament shall take measures to safeguard the external security, the independence, and the neutrality of Switzerland. (Art. 185 places a similar requirement on the Swiss Government.) And Switzerland has a long history of remaining neutral 'when all around it is burning down'. Some might argue that a constitutional requirement on our Federal Parliament to 'safeguard the external security, the independence and the neutrality of Australia,' might be a good thing. However, it should be appreciated that Australians can't defend Australia on our own. The assistance of powerful allies is essential to our security. Reliance on that assistance comes at a price. The price is that those powerful allies expect our support in their hour of need. Such was the case in 1960. The USA saw a need to stop communist expansion through south east Asia. Denied the support of the UN by a Communist China veto, America needed the moral support of allies. Lending that support to our ally, America, was half the aim of the Australian commitment. The other half of the aim of Australian commitment was that we also saw a need to stop the spread of communism. The point of all this is that neutrality may not be an option for Australia.

14. Article 9 of the Japanese Constitution includes the following. "Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. 2) In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized."

It is my understanding that the USA had a great deal of influence in the inclusion of this Article in the Japanese Constitution. (Perhaps the Bush Administration and the Australian Government should take a good hard look at this article in view of their current stand on Iraq.)

15. The German Constitution (Art. 26) provides that, "(1) Acts tending to and undertaken with intent to disturb the peaceful relations between nations, especially to prepare war or aggression, are unconstitutional. (2) Weapons designed for warfare may not be manufactured, transported, or marketed except with the permission of the Government. Details are regulated by a federal statute."

This Article of the German Constitution illustrates the utter futility of including in a constitution anything that can be negated or changed by government legislation. When the German People adopted this constitution in 1949, they would not have imagined that a short 30 years later Germany would have become one of the most prolific of arms exporters.

16. I can find no reference to war in the Constitution of the USA but the US War Powers Act of 1973 stipulates that the President of the USA, 'shall in every possible instance consult with the Congress before committing US Armed Forces to war, will report to Congress on any commitment and, within sixty days of such commitment, withdraw those forces unless the Congress;

a. has declared war,
b. has extended the period by a maximum of 30 days, or
c. is unable to act because of the war.'

Given the system of government in the USA, this act appears to satisfactorily resolve an omission from the US Constitution. However, it is only an act of Congress that can be revoked by Congress without reference to the People of the USA.

17. The Ukrainian Constitution (Art. 17) grants a good deal of autonomy in matters concerning the protection of Ukrainian sovereignty to the Armed Forces. This is another unsatisfactory arrangement in my view. A glory-hunting General could have the country involved in a war in no time.

Conclusion

18. Although it is the People of a nation that bear the brunt of the deprivations of war and are the ones called upon to give their lives in the prosecution of wars, none of the constitutions surveyed give the People anywhere near enough say in the decision making process. Australia is no exception. It is gratifying that the current PM is encouraging public debate of the Iraq issue and the current Opposition is calling for a parliamentary debate. But is this enough? It seems to me that, if we are to avoid the divisions in our society endured during Australian involvement in the war in Vietnam, a commitment to war should only be undertaken when that is the clear will of the People, expressed at a referendum.

19. Such a decision by the People could only be undertaken when the People are fully informed of the situation. The 'ruling classes' will of course argue that the disclosure of such information would jeopardise the security forces and other intelligence gathering organisations. This argument has been used countless times to deny the People access to information. But is it a valid argument? It seems to me that, if there is sufficient evidence to warrant a nation going to war, there must be a way to present enough evidence to the People to enable them to make such a decision without divulging sources or in any other way compromising the security and intelligence agencies. Intelligence information shared between allies is covered by a blanket prohibition on disclosure and this is quite reasonable. However, when it comes to committing a nation to war, it seems to me a legitimate requirement that our allies consult on what information can be disclosed. This should not be too difficult given that it is in the interest of all allies contemplating involvement in a war to ensure that their populations fully support the idea.

20. The next argument against requiring a referendum will be the question of time. The point will be made that there may not be time to conduct a referendum. This of course is nothing short of humbug. To my knowledge, no nation has ever gone to war, either as an attacker or as a defender, without a clear indication over a considerable period of time that war was possible. The conduct of a referendum to authorise a declaration of war if diplomatic efforts fail, could be conducted without necessarily committing the nation to war. If ongoing diplomatic action managed to resolve the problem and war was averted, the referendum result would simply relapse. Such a referendum could, in fact, strengthen the hand of our negotiators. Furthermore, our constitution could allow the deployment of forces in an emergency with subsequent ratification by referendum.

21. When a nation undertakes to fight a war, much legislation is necessary to re-arrange our priorities and the way our society operates. However, the most inappropriate time for a Parliament to be trying to pass the necessary legislation is when a nation is involved in a war or is mobilising to prosecute a war. Rational debate on such things as Martial Law, conscription, compensation, repatriation, suspension of certain rights, nationalisation of industry, national control of primary produce, constraints on the finance industry, designation of essential services, rationing, confinement of aliens, compulsory acquisition of property and so on, should be conducted when the nation is not in crisis. It seems to me that all these issues should be sorted out and included in a 'War Act' that would simply be activated by an act of Parliament in time of war. Alternatively, the War Act could automatically become law, under a provision in the constitution, when war is declared.

Task 17 - War and other Emergencies

22. The following questions have been devised to elicit your views on what should be included in our 'Model Constitution' with regard to the question of war and emergency situations short of war. However, you should not confine your response to simply answering these questions. Your views on any aspect of this question would be welcomed.

23. Ques 1. Should our 'Model Constitution' contain any clauses on the question of committing the nation to war?

Ans a. No.
Ans b. Yes.

24. Ques 2. On whose authority should our nation be committed to war?

Ans. a. The Parliament.
Ans b. The Government.
Ans c. The Governor General.
Ans d. The President of the USA.
Ans e. The People voting at a referendum.
Ans f. The Chief of the Defence Forces.

25. Ques 3. If your answer to Ques 2 is b, c, d, or f, should our 'Model Constitution' stipulate a requirement for the Parliament to ratify such a decision?

Ans a. Yes
Ans b. No

26. Ques 4. If your answer to Ques 2 is a, b, c, d or f; should our 'Model Constitution' require ratification by the People voting at a referendum?

Ans a. Yes.
Ans b. No.

27. Ques 5. Should our 'Model Constitution' require the Australian Parliament to debate and maintain a War Act for activation in time of war?

Ans a. Yes.
Ans b. No.

28. Ques 7. Should our 'Model Constitution' include provisions to cover the deployment of our Armed Forces in circumstances short of war? (For example, UN Peacekeeping Operations, natural disasters, etc.)?

Ans a. No
Ans b. Yes

29. Ques 8. Who should be empowered by the Constitution to authorise deployment of Forces in situations short of war?

Ans. a. The Chief of the Armed Forces
Ans. b. The Governor General
Ans. c. The Government
Ans. d. The Parliament
Ans. e. The People voting at a referendum

30. Ques 9. If your answer to Ques 8 is a, b, or c, should the Constitution require ratification by the Parliament?

Ans a. Yes
Ans b. No

31. Ques 10. Who should be empowered by the Constitution to authorise the initial deployment of Armed Forces in an emergency (such as an invasion of Australia)?

Ans a. The Chief of the Armed Forces
Ans b. The Governor General
Ans c. The Government
Ans d. The Parliament
Ans e. The People voting at a referendum

32. Ques 11. If your answer to Ques 10 is a, b, or c; should the Constitution stipulate that follow-up ratification is necessary?

Ans a. Yes
Ans b. No

33. Ques 12. If your answer to Ques 11 is Yes, should such ratification be required of:

Ans a. The Parliament?
Ans b. The People voting at a referendum?

34. Please add any other comments you may have on this subject.

35. Your response by the end of September 02 will facilitate Foundation processing of Member responses.

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Last updated: 3 May 2006