The Governor-General as Commander-in-Chief

However, in the early days it was the Sovereign who raised armies – who exercised both control and command of those armies. By letters patent, the Sovereign appointed Barons to command various elements of the feudal levy. It was this general levy and the matter of its control that was a principal cause of the war between Charles 1 and parliament. The bitter feeling that was aroused when the King billeted his soldiers on the people and imposed martial law in peacetime, culminated in the petition of rights. However, it was really not until after the succession of William III that under the Bill of Rights, the keeping of a standing army was put on a legal fitting – and subject to the approval of parliament.

At the same time the authority to punish certain offences, previously enforced by the articles of war emanating from the sovereign, was incorporated in the First Mutiny Act of 1689. Subsequently the Act was renewed annually, until replaced by the Army Discipline Act of 1879 and 1881.

Thus by the end of the 19th century, the power to create an army and also to decide the power its Commanders should receive in the discipline of the Army lay with the parliament. The sovereign retained the prerogative however and the supreme command of the army. This emphasises the distinction which plagued the British parliament for the whole of the 19th century. It remains a distinction which many people find difficult to comprehend. The distinction between control on the one hand and command on the other.

Judging by the times the question has arisen here in Australia, one might assume that the distinction is still not understood as fully as it should be. In essence the problem revolved about a royal army or an army under the command and control of Parliament – a Parliamentary Army. Neither of these an appealing prospect! It is important to understand the distinction between the two words, command and control.

Command, according to the Oxford dictionary means, ‘to order with authority.’ Although the Oxford dictionary is of relatively recent origin the concept of command has existed for centuries and always seems to have been associated with ‘ordering with authority.’ On the other hand the meaning given to the word control is ‘to check or verify and hence, to regulate.’

Whilst I do not wish to insult such an erudite audience let me present a simple analogy to explain the basic difference between the two functions. The motor vehicle, so much a part of every day life has required the development of laws and regulations to ensure the safe use of the vehicle. Laws have been formulated to regulate such things as speed limits, the side of the road used, the requirements for safety devices – brakes, windscreen wipers, seat belts and so on. All these laws and regulations have one thing in common. They are designed to check, verify and hence regulate the operation of the motor vehicle. In other words to control the way in which the motor vehicle is used. The creation of these control laws is the function of parliament.

The driver of a motor vehicle is required to operate with these control measures. He issues a series of commands – commands which he alone can transmit.

Each time the driver makes a decision on the operation of the vehicle it results in him (or, of course her) issuing a command to some part of the vehicle. The driver is required to make decisions, exercise judgement and hence to order or command the vehicle as he decides, bearing in mind the controls in which he can legally operate.

By what authority does a driver command a vehicle? It is by a control measure known as licensing. This determines the qualification of any person given the authority to command a vehicle.

The armed forces of a nation are established for the protection of the nation – or at least this is the purpose in democratic countries. But history has taught us that such armed forces, particularly armies, can be used, not for the protection but for the suppression of the communities in which they are raised.

To avoid misuse of the armed forces, the representatives of the people, the Parliament, determines what safeguards should be introduced to ‘control’ the activities of the armed forces. On such measure, for example, is the retention by Parliament of complete control over the expenditure of funds by the services. And of course, Government decides the size and level of capability of the forces.

On the other hand, Ministers have no command authority over the armed forces. The commissioning of an officer is in effect a license to exercise command. The commissioning document comes from the C-in-C but is countersigned by the appropriate Minister of State. This dual signature is a reflection of the symbolic relationship between the Crown and the Parliament in the matter of command. Once commissioned, an officer’s use of his command authority lies within the command system, generally referred to as the chain of command, and outside the field of executive government. The Minister of Defence for instance has no direct command authority in the true sense. He cannot go to the commander in the field or any subordinate officer and issue a command.

Let me give you a couple of examples. The first when I was staff officer to the Minister for Air. A very nice man who tended to be a little bit pompous on occasion. The case in question occurred when the Prime Minister requested, through the Minister’s office the use of a VIP aircraft and the answer to the Minister was that there was not a VIP aircraft available – all serviceable aircraft were committed. The Minister who was terrified of the PM told me to telephone the operational command and to convey to the Commander an order from the Minister to provide a VIP aircraft for the PM.

I still remember the very clear, slow and measured response of the Senior Air Staff Officer at the Command Headquarters. ‘David, please tell the Minister that he has no authority to come to this or any other Command and issue an order. If the Minister chooses he may go to the Chief of the Air Staff and tell him that he requires that priority be given to providing an aircraft for the Prime Minister. It is a matter for the Chief of the Air Staff. If he orders us to do so then of course we will comply if it is operationally possible. The situation is that the three serviceable aircraft are deployed on tasks and one would have to be brought back to Canberra to meet this request.’

I told the Minister and without a whimper or a word of anger he said ‘yes, that’s quite correct. I will not go to the Chief of the Air Staff. I will let the Prime Minister’s Office know.’

The second case was when I was Chief of the Air Staff. The Minister for Defence had received a complaint from the wife of a corporal that the Base Commander at Fairborn RAAF Base had refused her application to run a charity event on the base on a Sunday. The Minister had his staff contact the Base Commander and direct (order) him, on the Minister’s behalf to allow the charity event to proceed. The Base Commander went to his Command Headquarters and the AOC came to me. He supported the Base Commander who had refused on the grounds of security and the measures he would have to put in place for such an event. I advised the Minister that the event could not be supported. I pointed out that it was quite unacceptable for the Minister’s staff to approach the Base directly on that matter or indeed, on any matter. The Minister asked to see me and I went over to his office. In answer to his query as to why his staff should not go direct to the Base Commander – on his behalf. I said they were not in the chain of command – he interrupted and said ‘what about me – the approach was made in my name? I was pleased to tell the Minister that he was not in the chain of command, in a command sense. He could direct me to issue an order and if I did not do so he could sack me although that in itself could raise some awkward issues. In any case it would have been a rather trivial matter on which to sack a Chief of Staff.

Actually several eminent jurors have spoken authoritatively on command and the situation pertaining to the Governor-General as Commander-in-Chief. I will address these views and those of two Governors General later but first I will look to the drafting of S.68 by the Founding Fathers as they framed the Australian constitution to see if this gives any clue as to how the rather curious uncertainty came about. As a layman I use the word uncertainty – or ambiguous. Lawyers are predominantly of the one view, that there is no ambiguity. But then what is certain in interpreting the law?

Let me read S.68 of the draft Australian Constitution presented for debate at the Melbourne Convention debate on 10 March 1898.

‘The Command-in-Chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.’

Dr Cockburn opened the debate on behalf of Mr Deakin who was absent when clause 68 was tabled. He moved an amendment ‘that the words ‘as the Queen’s representative’ be omitted and the words ‘acting on the advice of the Executive Council’ be inserted in lieu thereof’

The vigorous debate that developed from this proposal had speakers clearly for or against the amendment. Those in favour of the original wording and against the amendment were led by Mr Barton. Those in favour of the amendment were led by Mr Deakin.

The essence of Mr Deakin’s argument was that without the amendment ‘acting on the advice of the Executive Council’ the clause appears to point directly to some additional personal power to be vested in the Governor-General in regard to the Naval and Military forces of the Commonwealth.

Mr Barton, while opposing the amendment, was nevertheless in agreement that the Governor-General should not act without the advice of the Executive Council but indicated the belief that such a requirement was inherent in the existing wording of clause 68. He said:

It is perfectly competent for any Minister under responsible government, such as we have it, to secure for the people through their Executive Council every control that my learned friend wishes to obtain, that is to say, every control of the entire management and administration of the Department for which the minister is responsible.

Barton drew attention to the principle laid down by Sir Henry Parkes following an incident when the Commandant in New South Wales once offered to the Governor, a battery of troops to serve out of the colony. Sir Henry Parkes then said:

The military forces have been called into existence by the parliament, and are paid out of the revenue of the colony, and they are as much subject to the control of the responsible government existing in this colony as any other branch of the public service.

In reading the speeches of both Barton and Deakin it seems clear that they were arguing semantically. Both were adamant that the Governor-General would act on or with the advice of the Executive Council. It also seems clear that both men were devoting their entire argument to control and gave scant attention to command.

I find my own view that this is much ado about nothing supported to a certain extent by Barton’s concluding remarks:

We find that, as time has gone on, all these powers have come to be exercised by the advice of the Minister if not by the advice of the Executive Council. The constitutional usage in this case seems to me so clear that it would be of no use to attempt to disturb it, and, whether these words are or are not inserted, the power will be really in the hands of the people.

Whilst I would agree with all these views – and indeed it seems clear that our founding fathers did also. So why would it not have been easier to agree the amendment when proposed by Deakin in 1898.

But now let us look at the views of two eminent Governors General and a distinguished jurist on the role of the Governor General as Commander-in-Chief of the Australian Defence Force. Sir Paul Hasluck:

The exercise by the Governor-General of the command-in-of the armed forces is qualified by a number of statutes of the Australian Parliament and regulations made under them. ———— This ensures that civil administration and civil control of those forces will remain and be exercised by a Governor General acting with the advice of Ministers.

Now some quotes from an address by the Right Honourable Sir Ninian Stephen to the graduating class of the Joint Services Staff College in 1983, when he was Governor General.

The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queens representative – so runs S68 of our constitution Changed by only two words, neither of any consequence since the first draft of the constitution —————– on the 9th April 1891. And the words seem clear and unambiguous enough ‘The command in chief is vested in the Governor General’ no mention of Chiefs of Staff, none of Ministers of Defence, of cabinet or of Prime Minister. Instead, all the panache of a Boulanger, a general on a white horse, at the head of his armies, with standard unfurled.

To speak of the Governor General as ‘Commander in Chief’ in the context of the modern defence structure is almost meaningless he being ‘in effect no more than a glorified Patron of the Defence Forces’ He may retains white horse, you might think, if he will, but in terms of military command, it will certainly prove no horse of war.

The contrast between the words of S68 appearing to confer supreme command in absolute terms, and the writings of constitutional lawyers is striking indeed; and it seems of some topical relevance that one should understand how it comes about that the splendidly sweep of military power which the express words of S68 exhibit is regarded by constitutional scholars as lacking in substance.

After a lengthy address in which he expanded on the same theme Sir Ninian said it seemed appropriate to conclude with the words of a distinguished Australian whose life had been the law save in wartime when he saw distinguished service in high military command. Sir Victor Windeyer, formerly a Justice of the High Court and a Major General, has written on this question and can fittingly be allowed the last word, particularly since what he wrote has been adopted as authoritative by the Defence Review Committee’s Report on the Higher Defence Organisation in Australia.

Sir Victor had this to say, writing in 1979 and speaking of the power to call out the Defence Force in peacetime:

The question here depends on the constitution, not on the provisions of the Defence Act. Some provisions of the constitution refer to the ‘Governor General in Council’ – which section 63 stipulates is to be construed as the Governor General acting with the advice of the Federal Executive Council: but other provisions refer simply to ‘the Governor General’ The distinction is significant. Section 68 states that ‘The command in chief of the naval and military forces of the Commonwealth is vested in the Governor General as the Queens representative – not in the Governor General in Council. It follows that orders by the Governor General to the Defence force, including calling it out, are given by virtue of the authority of command in chief. That does not mean that His Excellency may act without ministerial advice. He must act on the advice of a responsible minister; but not necessarily by an Order-in Council after a meeting of the Executive Council.

Sir Ninian then says, and this is important to the culture of the armed forces:

Having given Sir Victor the last word, may I add a postscript? Purely titular my title of Commander-in-Chief may be, but it does reflect the quite special relationship that I believe exists between the Governor General and the armed forces of the Commonwealth. It is a close relationship of sentiment, based neither on control or command but which, in our democratic society, expresses on the one hand the nation’s pride in and respect for its armed forces and, on the other, the willing subordination of the members of those forces to the civil power.

Ladies and gentlemen, I think the position is crystal clear but, on the other hand, I would not doubt that there are lawyers who would be prepared to take the matter to the High Court – for a consideration. Thank you for your attention.