Matthew Paterson

University

University of Queensland

Place (Rank)

Finalist

Year

2016

Introduction

Matthew Paterson, a University of Queensland student, discussed the statement, “The Governor-General is every bit as much the Commander in Chief of the Australian Defence Force as the American President is the Commander in Chief of the United States Armed Forces.” He has an enduring interest in the institutions through which decisions are made, and has developed an interest in the historian E.H. Carr’s approach to understanding historical concepts.

Essay

“The Governor-General is every bit as much the commander of the Australian Defence Force as the American President is the Commander in Chief of the United States Armed Forces.” Discuss.

‘[A] past act is dead, i.e. meaningless to an historian, unless he can understand the thought that lay behind it.’[1] Though a statement on how one should practice history is prima facie irrelevant to a student of the law, it becomes relevant when comparing different states’ constitutions. Nowhere is this more true than in analysing the meaning of the phrase ‘command-in-chief’. It is an obvious fact that this phrase is incorporated in both the American and Australian constitutions.[2] However, as E.H. Carr suggested of all facts,[3] ‘command-in-chief’ only takes on a meaning upon an understanding of the thought behind it, and the context within which it has been subsequently used. In this essay, I will argue that between the drafting of each constitution, there was a significant shift in constitutional theory. Therefore, whilst the American President has unilateral powers of command, the Australian Governor-General is encumbered by the principle of responsible government. This difference at the time of drafting has been expanded by shifts towards greater executive powers for the President, and a more symbolic role for the Governor-General, particularly after the 1975 dismissal of the Whitlam Government. Consequently, whilst they are both titular heads of their respective armed forces, the President’s and Governor-General’s powers of command are substantially different.

  1. EARLY ITERATIONS OF EXECUTIVE POWER: ‘COMMAND IN CHIEF’ AND THE DRAFTING OF THE AMERICAN CONSTITUTION

From the moment of their inceptions, the American and Australian constitutions have been indebted to English constitutional practice. This is perhaps most significant when examining the oldest executive power: the power to raise and command militaries. Whilst Parliament wrested the power to control the size and strength of the British military from the Crown in the Glorious Revolution of 1688, the power of command still very much rested with the Crown. This power was reflected most simplistically in the styling of the King as ‘Commander-in-Chief’, a title held until 1793.[4] Substantially more significant is the ‘war prerogative’, which allows the sovereign to declare and conduct war as they see fit.[5] In the eighteenth century, these powers were both actively held and literally interpreted. King George II was the last British Monarch to command forces in the field, at the Battle of Dettingen in 1743. His successor, King George III, was very much an active decision-maker in the American War of Independence.[6] It was only when King George III became incapacitated by mental illness during the Napoleonic Wars that the Monarch began to truly delegate their command powers to the Ministry of the day.

It is in this context that the framers of the US Constitution descended upon Philadelphia in 1787 and began debating and drafting what was to become their country’s supreme law. Though the delegates’ opinions differed on how the new government should take form, there can be no doubt as to the influence of the English Constitution on the Convention’s debate. Indeed, Pierce Butler, an influential framer from South Carolina, noted that delegates were ‘constantly running away with the idea of the excellence of the British parliament and with or without reason copying from them.’[7] Ultimately, they coalesced around what James Madison termed an ‘elective monarch’ – the President.[8] It is thus little wonder that Article II § 2, cl 1 of the US Constitution reads ‘The President shall be commander in chief of the Army and Navy of the United States…’;[9] in their reverence for the English system, the delegates even adopted one of the King’s titles for the President! However, the delegates’ reverence for the English system was tempered with a belief in the relatively new principles of ‘separation of powers’ and ‘checks and balances’ which together effectively limited the President’s power.[10]

The limits imposed by the separation of powers and checks and balances principles came to the fore with the new limitations imposed upon the ancient war prerogative. Though ‘nominally the same as that of the king of Great Britain’, Alexander Hamilton noted in Federalist No. 69 that the President’s powers of war would be ‘in substance much inferior to it’.[11] This substantive difference is due to Article I § 8, cl 11, which grants the power to declare war to Congress,[12] and Article I § 8, cl 12-16, which empower it to raise and regulate the armed forces.[13] In creating this separation of powers, the US Constitution not only divorced the powers of command from those of control of the military, but also removed the power to declare war from the executive. The President was in this regard intended to have ‘nothing more than the supreme command and direction of the military and naval forces, as first General and admiral’.[14]

  1. THE AMERICAN PRESIDENT AS THE ‘COMMANDER IN CHIEF’

Though no President since George Washington has taken command of their troops in the field, there can be little doubt that the President is still very much Commander in Chief of the US military. This practice was explained by the US Supreme Court in Martin v. Mott,[15] which decided that in ‘order to respond effectively to emergencies and avoid divided control, the power to respond’ to military threats is vested in the President.[16] Thus, the President ‘is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual’.[17] The discretion granted therein can only be described as broad. The Prize Cases,[18] decided during the American Civil War, recognised that the President has ‘complete discretion in exercising the Commander-in-Chief power’.[19]

The level of discretion granted to the President in exercising their power far exceeds the characterisation that they are ‘first General and admiral’.[20] Indeed, the framers appear to have more than succeeded in creating the ‘vigorous’ Executive described as necessary in Federalist No. 70.[21] There have been at least 125 instances of military action by the President without Congressional approval,[22] compared to six wars that it has declared.[23] However, Congress pushed back against this practice with the introduction of the ‘War Powers Resolution’ in 1973.[24] This Resolution requires that Congress declare war or authorise a military action within sixty days of the President launching that action.[25] Importantly, the War Powers Resolution can be sidestepped; both Presidents George HW Bush and Bill Clinton successfully argued that the Resolution only imposed upon the Presidency an obligation to ‘consult with members with Congress before taking military action’.[26] Further, the Resolution does not apply to covert operations.[27] Consequently, other legal issues aside, President Obama was acting within his powers as Commander-in-Chief when he launched drone strikes and assassinated Osama Bin Laden. Evidently, the Congressional checks on the American President’s power to command the US armed forces do little to hinder the unilateral operation of that power.

  1. THE RISE OF RESPONSIBLE GOVERNMENT

Whereas the US Constitution drew from the English Constitution as it stood in 1787 and developed independently from there, the Australian Constitution has had much more significant, and much more recent British influences. Over the 113 years between when each constitution came into force, titanic shifts in Westminster government occurred. As noted by the famed commentator Walter Bagehot, ‘in the so-called government of Lord North, George III was the government’, but by 1867, the Prime Minister had become ‘the principal executive of the British Constitution, and the sovereign cog in the mechanism’.[28] This drastic change was reflected in the British colonies with the development of ‘responsible government’ in the middle of the nineteenth century. Thus, governments across the British Empire (with the notable exception of India) were led by and accountable to their popularly-elected assemblies, not the Crown.[29]

The arrival of responsible government in the British colonies had a marked effect on the conduct and powers of their governors. This is exemplified by a series of minor crises surrounding the New Zealand Governor-Generals in the mid-eighteenth century. Central to these crises was Sir George Grey, who was twice appointed Governor-General, once before and once after the arrival of responsible government in New Zealand. In his first term, Grey was ‘supreme commander of both civil and military establishments’,[30] and exercised that power fully in prosecuting the Maōri Wars. However, New Zealand’s popularly-elected legislature was well-entrenched by Grey’s second term as Governor-General. When Grey then personally led an attack on a Maōri installation in 1865, against the wishes of the commanding officer and the legislature,[31] the UK War Office noted that it was not ‘any part of the functions of a civil Governor of a colony to take the personal direction of military operations in the field’.[32] Ultimately, this led to the withdrawal of all Imperial troops from New Zealand. A similar withdrawal (though not with similar causes) occurred throughout the Australian colonies in 1870.

These events are informative for two reasons, each of which points towards greater legislative control over the Governor. First, they indicate that the Governor of a colony, though both the Crown’s representative and styled as the colony’s ‘Commander in Chief’, lacked the authority to command the Imperial troops. Rather, the troops were to be commanded by the local officer appointed by and responsible to the relevant Minister in the Imperial Parliament (who was, of course, accountable to that Parliament). Second, by then favouring locally-raised troops, the Imperial Parliament was further strengthening responsible government. Indeed, these locally-raised armies ‘would be under exclusive control of the local colonial Ministry’.[33] Therefore, even in the earliest years of responsible government, it very clearly curtailed the local Governors’ military powers. This stance culminated in the 1892 Revised Regulations for the Colonial Service, which stated that the ‘Governor of a Colony, though bearing the title of Captain General or Commander-in-Chief, is not, without special appointment from Her Majesty, invested with the command of Her Majesty’s regular forces in the colony’.[34]

  1. ‘COMMAND IN CHIEF’ AND THE AUSTRALIAN CONSTITUTION

The limiting effect of responsible government upon Governors’ power of command-in-chief was therefore firmly entrenched at the time the Constitution was drafted. Indeed, this view is confirmed by the debate at the 1898 Constitutional Convention. At the Convention, Alfred Deakin moved to explicitly incorporate the phrase ‘acting under the advice of the Executive Council’ in the text of what was to become s 68.[35] However, this motion was defeated in debate by Edmund Barton, not because he opposed the substance of the proposed amendment, but because he considered its form to be wanting.[36] Indeed, as Sir Ninian Stephan, himself a Governor-General, noted, ‘both sides [were] agreed as to what was intended and [were] concerned only with whether or not it was sufficiently expressed.’[37] Ultimately, they decided that s 68 would read ‘The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.’[38] At the Convention, the framers further included ss 51(vi), 114 and 119, which, like their counterparts in the US Constitution, grant the control over the military to Parliament.

The consensus formed in the 1898 Convention is reflected in the views of contemporary commentators. Quick and Garran noted that the power of command ‘is now exercised in a constitutional manner. The Governor-General could not wield more authority in the naval and military business of the country than he could in routine work of any other department.’[39] It must be noted that ‘constitutional’ was often used as a by-word for “in accordance with the principle of responsible government”.[40] This reading of the Constitution is supported by s 16A of the Acts Interpretation Act,[41] which defines the Governor-General as ‘acting with the advice of the Executive Council.’[42]

The one remaining question is whether the Governor-General can exercise ‘reserve’ powers under s 68 so that in times of crisis, they can act without, or contrary to, Ministerial direction. Though many commentators doubt the presence of a reserve power of military command,[43]  it is worth considering here, particularly as unilateral action in times of crisis is a central element of the US President’s war powers.[44] The argument in favour of a reserve power of military control goes to the very purpose of the ‘reserve’ powers – the need for an independent arbiter in times of crisis. Some commentators suggested this may be necessary for ‘ensuring that the armed forces do not become a tool of government…’.[45] Indeed, the existence of a reserve power here would theoretically preserve both the independence of the military, and political stability more generally.

There are two core arguments that explain why the Governor-General has no ability to unilaterally command the military. First, the reason the Australian Constitution is largely predicated upon responsible government is that it assumes that decision-makers should be held accountable to the voting public.[46] Vesting military command in someone who is not elected, though it might lead to increased stability, is anathema to this principle. To the extent that stability is desirable, the most recent use of reserve powers in 1975 has indicated that being unelected does not guarantee stability or politically-impartial decisions. Indeed, the dismissal of the Whitlam government has shown that Governors-General can have just as turbulent an effect on Australian politics as its elected officials. Consequently, it becomes increasingly difficult to justify the reduction in accountability that a reserve power of military control would imply. Even if the motives of a Governor-General cannot be fairly impugned, such is the nature of politics that any move to take vice-regal command of the military would be ‘taking sides’ in a political conflict, which should surely be avoided. Second, even if the Governor-General may have once had the power of command, they no longer do. Whilst the 1900 Letters Patent for the Governor-General do refer to them as the ‘Commander-in-Chief’,[47] subsequent Letters Patent in 1984 and in 2008 have omitted any reference to this title.[48] Consequently, the Governor-General’s claim to unilateral command in chief is further weakened. 

  1. CONCLUSION: ARE ALL POWERS OF ‘COMMAND IN CHIEF’ EQUAL?

The Australian and American constitutions each inherited the phrase ‘command in chief’ from the British. However, they are two siblings born a century apart; though there are some clear similarities, there are also significant differences between how each constitution has developed. They both struck upon the same core limitations on the executive power; the popularly-elected legislature in each system has been granted the power to regulate their respective militaries. The two jurisdictions differ, however, in their conception of what the executive actually is. The American framers sought to create an ‘elective monarch’, with many of the unilateral powers traditionally associated with being a monarch. While the Australian command of the military is somewhat less ‘vigorous’ than the President’s, the principle of responsible government has meant that it is substantially more accountable than a President may be. To preserve this principle, it is not the Governor-General who commands the Australian Defence Force, but the Executive Council and the Minister for Defence. Consequently, whereas the President unilaterally orders drone strikes, the Governor-General has no such power. Thus, the Governor-General is a military commander in name only, whereas the President has a powerful ability to lead military action.   

[1] EH Carr, What is History? (Penguin Group (Australia), 2nd ed, 2008), 22.

[2] Australian Constitution s 68; United States Constitution article II § 2, cl 1.

[3] Carr, above n 1, 22.

[4] Sir Ninian Stephen, ‘The Governor-General as Commander-in-Chief’ [1984] Melbourne University Law Review 16.

[5] Rosara Joseph, The War Prerogative: History, Reform, and Constitutional Design (Oxford University Press, 2013).

[6] Walter Bagehot, The English Constitution (Oxford University Press, 2009), 53.

[7] Catherine Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention May to September 1787 (Back Bay Books, 1986), 101.

[8] Ibid, 113.

[9] US Constitution article II § 2, cl 1

[10] Louis Fisher, American Constitutional Law (Carolina Academic Press, 4th ed, 2001.

[11] Alexander Hamilton, The Federalist Papers No 69.

[12] US Constitution article I § 8, cl 11

[13] US Constitution article I § 8, cl 12-16

[14] Hamilton, above n 11.

[15] 25 US (12 Wheat) 19 (1827).

[16] Fisher, above n 10, 313.

[17] Fleming v Page, 50 US (9 How) 602 (1850), 614.

[18] 67 US (2 Black) 635 (1862).

[19] John Yoo and Robert J Delahunty, ‘The President’s Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them’ (2002) 25 Harvard Journal of Law and Public Policy, 191.

[20] Hamilton, above n 11.

[21] Hamilton, The Federalist Papers No 70.

[22] Yoo and Delahunty, above n 20, 202.

[23] Garance Franke-Ruta, ‘All the Previous Declarations of War’, The Atlantic (online), 31 August 2013 < http://www.theatlantic.com/politics/archive/2013/08/all-the-previous-dec...

[24] War Powers Resolution (US) 88 Stat 555 (1973), 50 USC § 1541-48 (1994).

[25] Ibid.

[26] Fisher, above n 10, 317; Campbell v Clinton, 203 F3d 19 (DC Cir 2000); Ange v Bush, 752 F Supp 509 (DDC 1990).

[27] Fisher, above n 10, 316.

[28] Bagehot, above n 3, 53.

[29] Stephen, above n 4.

[30] Stephen, above n 4.

[31] Ibid.

[32] R Fletcher R [1943] 2(8) Historical Studies of Australia and New Zealand, 210.

[33] Stephen, above n 4.

[34] Revised Regulations for the Colonial Service (1892II), 10-11.

[35] Convention Debates, (Melbourne, 1898), 2249-2264.

[36] Ibid; George Winterton, Parliament, the Executive and the Governor-General: A Constitutional Analysis (Melbourne University Press, 1983), 14-15.

[37] Stephen, above n 4.

[38] Australian Constitution s 68.

[39] Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901), 713.

[40] Ibid, 713; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers’ case) [1920] HCA 54.

[41] Acts Interpretation Act 1901 (Cth) s 16A.

[42] Ibid.

[43] Winterton, above n 36, 14-16; Stephen, above n 4.

[44] Hamilton, above n 21.

[45] Hartnell, Canberra Papers on Strategy and Defence No 27 (1983), Ch 8.

[46] Winterton, above n 36, 14-16.

[47] Letters Patent of Victoria (1900) constituting the office of Governor-General of Australia.

[48] Letters Patent of Victoria (1984) constituting the office of Governor-General of Australia; Letters Patent of Victoria (2008) constituting the office of Governor-General of Australia.