17 March 2004

Taming the prerogative

The Report concludes that a different approach is needed, and that comprehensive legislation should be drawn up which would require government within six months to list the prerogative powers exercised by Ministers. The list would then be considered by a parliamentary committee and appropriate legislation would be framed to put in place statutory safeguards where necessary. A paper and draft Bill appended to the Report, prepared by Professor Rodney Brazier, the specialist adviser to the inquiry, contain these provisions as well as proposals for early legislative action in the case of three of the most important specific areas covered by prerogative powers: decisions on armed conflict, treaties and passports. The Report recommends that the Government should, before the end of the current session, initiate a public consultation exercise on the prerogative powers of Ministers.

The House of Commons public administration committee has written a draft bill which among other things, requires parliamentary approval before going to war or ratifying certain treaties.

The bill would require the consent of both houses before:

  • 5(1)(a)��"armed conflict" means any use of force which gives rise, or may give rise, to a situation of armed conflict to which the Geneva Conventions of 1949 or the Additional Protocols of 1977 apply;

  • 6��Declaration of war

  • 7(1)��Any use of Her Majesty's armed forces in support of the police

That's already required by the US constitution and could be achieved by statute in Australia. The Australian Democrats have proposed changes to the Defence Act in the past without success. Our constitution is silent on the war power because it was written for a self-governing colony within an empire that no longer exists. The Commons committee makes the point that the exercise of the royal prerogative by ministers was never voted by parliament, it just evolved with the disappearance of the Crown's political powers. Rather than being abolished or democratised the royal prerogative was simply shifted to the prime minister.

The Man of Steel sought consent for the Iraq war from both houses. The Senate refused its consent and was ignored. There is no higher decision than going to war and it's an outrage that it remains a thing the prime minister, acting alone, can decide without appeal.

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