The section 9 of the Defence Act provides the Minister of Defence with the authority to use the NZDF for public services and civil purpose but requires notification to the House. The Minister's authority lasts 14 days whereupon it lapses unless extended by the House (or in its absence, the GG).
There is no similar requirement of notification of authority by the House for overseas deployments where force is expected to be used.
Even though it seems like a core Executive Prerogative, I think the Minister of Defence could be required to go to the House and ask for its authority to use the NZDF overseas and to use force. This authority need only be given once for a particular overseas action. However, once the deployment was finished any subsequent action in the same place would require a fresh authority. If the Minister gets the authority of the House, s/he can subsequently authorise further deployment of troops for the action authorised by the House. This avoids the need for the Minister to keep going back to the House asking for authority to send another group of troops to the action.
Given New Zealand's forces are for defensive purposes, I don't think it's an unreasonable assault on Executive power to have the House (or in its absence, the GG) specifically authorise the use of troops for military action. It's not only democratically sensible it's also a practical consideration given the House is going to end up having to find the resources to continue the engagement.
While this is deeply controversial and mired in heavy constitutional principles about Executive versus Parliament's powers, I think it's a worthy cause. Keith Locke would be the obvious candidate to promote this.
Thoughts?
Paring back "executive prerogatives" is I think a good progressive goal, and this could be linked to attempts to have the House ratify treaties (which has been the subject of a member's bill in the past).
I'd leave it to the House, though; the G-G isn't elected, has no democratic legitimacy, and must always act on the advice of the PM anyway (so that just turns it back to executive fiat). Even if they were elected, its not their role; their role is to be a rubber-stamp.
Yes. That's the proposal, Anita. Only where force is to be used. Aid work is not. But armed peacekeeping would be.
Also, I am not sure the out-of-session thing is too worrisome. The civil purpose dimension requires the minister to go to the GG if the House is not meeting. I am not sure whether a special session should be called - even if prorogued. We always have Members even in the midst of a General Election. Is it too much to ask that, even out of session, the Executive ask the representatives of the New Zealand public to validate a decision to put young New Zealanders in harms way? I can't think of a more compelling reason. The timing in terms of writs and stuff would need to be considered carefully. But in most cases, recalling the House into session when it's not meeting seems a small inconvenience compared with the life-threatening inconvenience being placed on our soldiers, sailors and airpeople.
I know the Brits recalled parliament when the Falkland Islands were invaded. You can get from almost anywhere (well, apart from some of Helen Clark's more adventurous mountain expeditions) to Wellington in 48 hours, so it doesn't seem that impractical.
The 14 day rule in s9 might work just as well for this. It'll get the troops on their way to armed peacekeeping, but the house will have to be recalled within 14 days (unless we're in the funny expiry-election-new parliament period in which case the GG is the best we've got).
Would the definition of "active service" in s44 cover what you had in mind?
NZDF has a lot of deployments, and the difficulty is in finding definitions which nail down the ones we want a vote on. Actually shooting at people is "active service", and I think this applies to Afghanistan (it certainly applied to the SAS when they were there). But I'm not sure whether it applied to e.g. the naval deployments to the Gulf of Arabia, or to deployments to Timor Leste or the Solomons. And if it applies to the small handfuls of people sent to monitor peace in the Sinai etc, then its not the definition we want.
We could go for this:
No part of the Armed Forces shall be deployed outside New Zealand on active service or armed peacekeeping operations unless…
But "armed peacekeeping is quite ill-defined"