Which of the following would be a military power of the governor?

With the announcement of Australia’s involvement in dropping aid to Kurdish fighters engaged against Islamic State extremists in northern Iraq, questions have again arisen about who should control Australia’s military powers.

The most recent actions have been taken under the federal government’s prerogative power to deploy military force. The Greens and independent MP Andrew Wilkie have argued that the exercise of these powers should be preconditioned on parliamentary debate and authorisation.

The government’s war powers

Under Section 61 of Australia’s Constitution, the executive power of the Commonwealth is vested in the Queen, exercisable by the Governor-General. By convention, this power is exercised on the recommendation of the Governor-General’s ministers. (The few exceptions, known as the “reserve powers”, are not relevant here.)

The Commonwealth’s executive power includes those powers vested in the Governor-General by the Constitution, powers vested in the government by legislation, and other powers that are supported by the common law.

This last category includes the prerogative powers. Prerogatives are those powers that are unique to government: powers that non-government entities, such as individuals and corporations, do not share. This category also includes the common law capacities: the powers enjoyed by everyone, which include the power to spend money, enter contracts and hold land.

A number of different types of executive power are relevant when we talk about Australia’s military, or war, powers. The first is Section 68 of the Constitution. This vests the command-in-chief of the naval and military forces of the Commonwealth in the Governor-General.

The second is the ancient prerogative power to deploy the armed forces overseas, including in war and other conflicts. This is an unusual and strong prerogative power.

Most prerogative powers are non-coercive. But under the war prerogative, the executive can undertake military engagements, including the deprivation of liberty, the infliction of intentional harm and even death.

Today, this prerogative power is supplemented by provisions in the Defence Act such as Section 50C, which states that:

Members of the Army may be required to serve either within or beyond the territorial limits of Australia.

The final power that is relevant is what is commonly referred to as the “nationhood” executive power. The nationhood power includes all those powers that the Commonwealth necessarily exercises as a sovereign nation.

In the past, this power has been found to support legislation criminalising sedition, and legislation enacted in response to the economic emergency caused by the global financial crisis.

Relationship between the war powers and parliament

The Commonwealth government does not require parliament’s approval before it decides to exercise its prerogative and deploy armed forces or declare war. However, the principle of parliamentary sovereignty mandates that parliament controls the executive and executive power. As the High Court has explained:

Whatever the scope of the executive power of the Commonwealth might otherwise be, it is susceptible of control by statute. A valid law of the Commonwealth may so limit or impose conditions on the exercise of the executive power that acts which would otherwise be supported by the executive power fall outside its scope.

The prerogative powers and the Commonwealth government’s “nationhood” power are both susceptible to control by parliament; they can be changed and even abolished. However, a 2001 Australian Federal Court decision, involving the deployment of SAS troops onto the MV Tampa to prevent it from docking at Christmas Island with its cargo of rescued asylum seekers, indicated that the statutory displacement of the prerogative is not easily achieved.

In the decision, Justice Robert French – now Chief Justice of the High Court – held that while parliament could displace a non-statutory power, it would not be easily found that it had done so, particularly if the power was:

… intimately connected to Australia’s status as an independent, sovereign nation state.

There is also a question as to whether parliament could control or curtail the exercise of an executive power that is expressly conferred by the Constitution, such as the command-in-chief power vested in the Governor-General by Section 68. While it is not entirely certain, it would seem that parliament may control the exercise of these powers, but may not remove or curtail them to a significant degree.

What this means is that the Australian parliament may pass legislation that would require parliamentary approval for the deployment of military forces, or even require statutory backing to do so. However, these requirements would have to be explicit to displace a prerogative as important as the government’s war powers and must not go so far as to remove the commander-in-chief power.

Should going to war require parliamentary approval?

Parliament could enact legislation that sets up a pre-approval process for the exercise of the war powers. However, such legislation would have to be passed through both houses. Passage through the House of Representatives appears unlikely (for now), with bipartisan support for maintaining the current position.

Maintaining the current position certainly has benefits. Relying on the prerogative allows the government to act decisively and respond flexibly to emergencies when they arise.

Parliamentary approval will add (sometimes significant) delay to such responses. Parliament may not be sitting at the time a crucial decision is required. Parliamentary debate and procedure will itself lead to additional delay. Parliamentarians may be hampered in debating and coming to a decision by lack of access to highly classified information.

Parliamentary authorisation may limit the government in the prosecution of armed hostilities. This may give rise to the need for additional authorisation to be sought if the initial approval proves insufficient. There is also the possibility that by involving parliament, partisan politics could colour the decision-making process, and military actions may be approved or refused based on matters other than the national interest.

There is, nonetheless, much to be said for a parliamentary approval process. Involving parliament in this important government decision would bring a much larger, more representative institution into the decision-making process. This brings different perspectives to the debate and increases the legitimacy of any decision in the eyes of the wider public.

Involving parliament would allow the assertions of factual positions, such as the now fabled existence of weapons of mass destruction in Iraq in 2003, to be tested in a public forum.

A number of countries, including Ireland, South Africa, the United States and the Netherlands, now require some level of parliamentary involvement in the decision to deploy military force. Parliamentary participation in this decision comes in many forms.

Debate about whether the Australian parliament should be involved must be undertaken in a considered manner. This would preferably occur at a time when military deployment is not imminent, and the debate is not coloured and clouded by that conflict.

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Most governors have broad authority to nominate officials to serve in state executive branch positions—many of whom will be included in the governor’s advisory committee, known as the “cabinet.” Governors may be empowered as well to make appointments to state judgeships. Frequently, these appointments are subject to confirmation by one or both houses of the state legislature. While often pro forma in nature, the confirmation process with respect to executive branch appointments can be used by legislatures to expand their influence on governors and their policies. Accordingly, many governors consult with key legislators before making formal nominations.

For state by state information on the methods of selecting state officials, see “Selected State Administrative Officials: Methods of Selection” (Table 4.10, The Book of the States 2019, source: The Council of State Governments).

Boards and Commissions

The roles played by boards and commissions vary considerably by state and by program. In some states appointed boards have the primary responsibility for individual programs and agencies and are responsible for the selection of department and agency heads. This is particularly true in the field of education, but boards still retain responsibility for a broad range of other programs in fields such as labor, transportation and health and human services.

In many states the members of these boards are named or nominated by the governor. And in many of these cases, board members are subject to confirmation by one or both houses of the legislature.

Other boards play more limited regulatory or advisory roles. In most states boards oversee the licensing and regulation of numerous professions and business areas. In other states they advise the governor on areas of importance such as the environment and economic development.

While the elimination and/or consolidation of boards and commissions is a common focus of government efficiency and government reorganization initiatives, they still play a prominent role in state government, providing opportunities to address the concerns of special interests and to reward political supporters.

Executive Branch Positions Independently Selected

A large number of states provide for the independent selection of certain executive branch positions. Most noteworthy among these positions are lieutenant governor, secretary of state, attorney general, and treasurer.

The position of lieutenant governor exists in the overwhelming majority of states, where the position is most often filled by popular statewide election and jointly with the governor, although in a small number of cases the role of lieutenant governor is assigned by state law to another position in either the executive or legislative branch (e.g., secretary of state or leader of the senate). The positions of secretary of state, attorney general, and treasurer are all subject to statewide popular election in the majority of states, and at least one of the three is elected in most of the remaining states.

Governors generally have limited authority in the appointment of state comptrollers and pre and post audit department heads. Governors’ appointment powers are also limited with regard to the heads of state education and higher education agencies. The education department head is independently elected statewide in 14 states and is appointed—independent of gubernatorial approval—by a board or agency head in 20 states and two territories. In most states and territories, the higher education head is appointed by a board independent of gubernatorial approval.

A number of states also provide for the statewide election of one or more other department heads, among them public utility regulators and the heads of agriculture, labor, and natural resources departments.

As with governors, other statewide elected positions may be subject to age, citizenship, and state residency requirements, as well as term limits.

For state by state data on the joint election of governors and lieutenant governors, see “The Governors” (Table 4.1, The Book of the States 2019, source: The Council of State Governments).

For state by state information on the methods of selecting state officials, see “Selected State Administrative Officials: Methods of Selection” (Table 4.10, The Book of the States 2019, source: The Council of State Governments).

For state by state information on eligibility requirements for state officials, see “Constitutional and Statutory Provisions for Number of Consecutive Terms of Elected State Officials” (Table 4.9, The Book of the States 2019, source: The Council of State Governments).

Cabinets

State cabinets, which serve as advisory councils to the nation’s governors, generally are made up of officials appointed by the governor to head state departments and agencies, and in some cases top-level staff in the governor’s immediate office. In most states the cabinet fulfills two functions:

• advises the governor on the development of policy; and
• serves as a vehicle for the governor or senior staff to convey priorities to gubernatorial appointees and address cross-agency issues or concerns.

In a number of states, governors have created sub-cabinets to bring together agencies to address issues such as the needs of children.

Forty-four states and all of the commonwealths and territories have cabinets and/or sub-cabinets. Cabinets themselves may have their origin in law, tradition, and/or the governor’s discretion. Cabinet membership may be a product of appointment to a specific office or be subject to selection by the governor. Cabinet size, and the frequency of cabinet meetings and formality and extent to which a governor uses his or her cabinet for advice and assistance, varies among the states, commonwealths, and territories.

For state by state information on cabinets, see “State Cabinet Systems” (Table 4.6, The Book of the States 2019, source: The Council of State Governments).