The war powers in 21st century Australia : the case for reform

Abstract

Since Federation, the exercise of the war powers in Australia have 'developed' in a circle from the prerogative of the British monarch to the prerogative of the executive branch narrowly defined, i.e, the Prime Minister and Cabinet. The current executive exercise of the war powers suffers from five problems: it is anachronistic and inherently anti-democratic; it is of uncertain legal validity; it facilitates entry into unnecessary wars; it inhibits strategic independence; it represents a threat to liberty when combined with the presence of a standing army. The need for reform of the exercise of the war powers has been recognised for decades. Political parties such as the Australian Democrats and the Australian Greens have repeatedly tried to shift the locus of the exercise of the war powers from the executive to the legislature. Their proposed reform would require an approval vote in the Australian parliament prior to entry into war. That reform is problematic: it is a-contextual, a-historical, onedimensional and contingent on the non-existence of elements that do in fact exist. Accordingly, the proposed reform imperfectly addresses the five identified problems. By contrast, this thesis examines the reform question through a multi-dimensional lens. It situates the issue in its historic and current geo-political context and advocates a complex solution to a complex problem: a republican-inspired combination of mutually reinforcing constitutional, alliance and military reforms. Given important contextual elements, such as historic and current geo-political circumstances, including converging catastrophes of the Anthropocene and United States' attempts to maintain global hegemony, it is a necessary but not sufficient reform to shift the locus of the exercise of the war powers from the executive to parliament. The constitutional reform proposed in this thesis comprises shared exercise of the war powers among the executive, the legislature and the people via a vote in a plebiscite to approve any proposed conflict. The proposed alliance reform involves a break with the United States and the adoption of a position of armed neutrality underpinned by ecological realism. The military reform envisages the establishment of a citizen defence force replacing the Australian Defence Force. This reform program is normatively preferable to both current war powers arrangements and current reform proposals and is more likely to provide: greater democratic control; legal certainty; constraint of entry into unnecessary war; strengthening of strategic independence; and support for liberty.

Date of Award	2021
Original language	English