Show of hands for call to arms

Australia should change the way it goes to war. The decision to send Australian troops to conflicts like Iraq and Afghanistan should not rest solely with the government of the day. The government should retain primary responsibility, but Parliament should be given a greater say.

In the aftermath of the 2003 Iraq war, the Australian Democrats sought to change the law so that members of the Defence Force ''may not be required to serve beyond the territorial limits of Australia except in accordance with a resolution agreed to by each House of the Parliament''.

There were exceptions to allow the movement of personnel during peacetime and swift action in the event of an emergency. The Democrats' bill was debated in 2005, but was not passed.

With the demise of the Democrats, the idea has been adopted by the Greens, who have reintroduced a similar bill. This time around the proposal is being given more serious attention through a public inquiry by the Senate committee on foreign affairs, defence and trade. The committee is taking submissions now and must report by the end of this year.

This debate is not limited to Australia. It has emerged in other nations after the Iraq war. People have questioned how they too easily came to be involved in a conflict based upon false intelligence, and how their military used pre-emptive force in breach of international law.

The British Prime Minister, Gordon Brown, has released a green paper, The Governance of Britain, that calls for change that ''entrusts more power to Parliament and the British people''.

One proposal is to give Parliament a veto on any decision to deploy troops abroad. The Brown Government itself has recognised that the executive ''should seek the approval of the elected representatives in the House of Commons''.

The Australian constitution is silent on who can declare war or the circumstances in which we might go to war. It has nothing like the statement in the Japanese constitution that ''the Japanese people forever renounce war as a sovereign right of the nation''.

It is not surprising much is left unsaid. Our constitution was framed in the 1890s according to the British practices of that era. This was not a time when popular or even parliamentary involvement in decisions about war was contemplated.

Nor was it foreseen that Australia would submit itself to the rules of a body like the United Nations. If we were bound at that time in any way, it was to the foreign policy of Britain.

Our unwritten conventions suggest that the decision to use force overseas is made solely by the prime minister and the cabinet.

Other nations take a different approach. In the United States, for example, the President, Barack Obama, is the ''commander in chief'' of the armed forces, but the power ''to declare war'' is held by Congress.

The Australian Parliament should also play a limited role in decisions to involve Australian troops in hostile action overseas. There should be more deliberation, greater checks and balances and a higher degree of democratic accountability.

This is consistent with the obligations assumed by Australia under international law since our constitution came into force. Australia has been a party to the charter of the United Nations since 1945. It forbids the use of force by all nations, except where authorised by the UN Security Council or as an act of self-defence.

While the Parliament should have a say, both the Democrats' and Greens' bills fail to achieve the right balance. They would grant a veto to each house of the federal Parliament. Instead, the decision to go to war should be subject only to the veto of a combined joint sitting of both houses.

This would emphasise the importance of the decision and would involve all of the people's representatives in a single vote. It would also limit the horse trading that Senate ballots tend to attract, something that should have no place in the making of such decisions.

The role of Parliament should also be limited to scrutiny of the initial decision to use force. There should be no power for Parliament to micromanage things like the number of soldiers involved.

A veto power held jointly by both houses of the federal Parliament would as a general rule allow the government of the day to gain the outcome it wishes. So long as it can maintain party discipline, its greater majority in the lower house would offset any deficit in the Senate.

The decision to go to war would be subject to an important new check that would require public deliberation, but in most cases the government could still determine the course for which it will have to answer at the ballot box.

George Williams is the Anthony Mason Professor of law at the University of NSW.