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Entrenching ‘Cooperative Federalism’: Is It Time to Formalise Coag's Place in the Australian Federation?

Published online by Cambridge University Press:  24 January 2025

Paul Kildea  and
Andrew Lynch
Paul Kildea
Affiliation:
Federalism Project, Gilbert + Tobin Centre of Public Law, UNSW
Andrew Lynch
Affiliation:
Gilbert + Tobin Centre of Public Law and Faculty of Law, UNSW
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Extract

Literature on the necessity for reform of Australia‘s federal division of government continues to blossom, reflecting the assessment of a leading expert in the area that the system is now at a ‘cross-road’ between delivering a vibrant and beneficial federalism to the Australian public or ‘merely a mask for the effective centralisation of power’. Although the solutions advanced by many commentators towards ensuring the first of these outcomes over the second are many and various, it is notable that none looks exclusively to constitutional amendment as the silver bullet of reform. The notorious difficulty of attaining a successful referendum result – particularly on federal issues which have traditionally been amongst the most contentious proposals –as well as the difficulty of encapsulating all that might be done in the way of federal reform within a single suite of proposed amendments, has ensured that sub-constitutional institutions and mechanisms have been looked to as a simpler, more effective way to achieve change.

Type
Research Article
Information
Federal Law Review , Volume 39 , Issue 1 , March 2011 , pp. 103 - 129
Copyright
Copyright © 2011 The Australian National University

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Footnotes

We gratefully acknowledge the research assistance of Sophie Marjanac in preparation of this article. We alone are responsible for any flaws.

References

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42 Council of Australian Governments, ‘Communiqué’ 20 December 2007 <http://www.coag.gov.au/coag_meeting_outcomes/2007-12-20/cooag20071220.pdf>.

43 Council of Australian Governments, ‘Communiqué’ 29 November 2008 <http://www.coag.gov.au/coag_meeting_outcomes/2008-11-29/docs/communique_20081129.pdf>.

44 A rationalisation which had been long hoped for by the States: Fenna, above n 15, 527.

45 A sixth National Agreement on indigenous reform was also made but this was not supported by a specific purpose payment.

46 The CRC is independent of the individual governments and reports directly to COAG on progress under the National Agreements as well also on the National Partnership payments scheme which funds specific projects connected to the National Agreements.

47 Carroll and Head, above n 34, 416–20.

48 Griffith, above n 2, 36.

49 Griffith says that while ‘the COAG process is not the whole story of present day Australian federalism…[it] is however the leading player in that story': ibid 37.

50 See Council of Australian Governments (COAG), COAG Meeting Outcomes (18 May 2010) <http://www.coag.gov.au/coag_meeting_outcomes/archive.cfm>.

51 In the period 1992–2007, COAG met once a year ten times, and twice a year five times; it did not meet at all in 1998: ibid. On the brevity of meetings, see Business Council of Australia, Reshaping Australia's Federation: A New Contract for Federal State Relations (2006), 14.

52 Emma Rodgers, ‘Abbott Takes Axe to Rudd's “Bureaucracy“’ ABC Online (20 July 2010) <http://www.abc.net.au/news/stories/2010/07/20/2958718.htm>.

53 Matthew Franklin and Sid Maher, ‘Rudd's Magic Cure: More Process’, The Australian (Sydney), 4 March 2010, 1.

54 Painter, above n 2, 62, 89.

55 Peter Beattie, ‘The Immediate Challenge Regarding COAG Reform [Extracts from a speech to the Economist Intelligence Unit's Australian International CEO's Forum, 19 Sept 2001, Sydney]’ (2002) 61(4) Australian Journal of Public Administration 57, 59. It is perhaps noteworthy that the manner in which COAG meetings are organised would not meet the broad protocols in place for the operation of Ministerial Councils, which recognise the importance of responsible government, and in particular ‘the responsibility of Ministers to ensure they are in a position to represent their governments appropriately at Council meetings': Department of the Prime Minister and Cabinet, Commonwealth-State Ministerial Councils: A Compendium (2010) 2.

56 The Australian (Sydney), 25 November 1994, quoted in Painter, above n 2, 85.

57 Anderson, above n 6, 496.

58 Linda Botterill, ‘Managing Intergovernmental Relations: COAG and the Ministerial Councils’ (2005) Audit Discussion Paper, Democratic Audit of Australia: A collaborative project hosted by the Institute for Social Research, Swinburne University of Technology, 2; Hollander and Patapan have noted the tendency for COAG's agenda to be dominated by issues on which the Commonwealth needs State cooperation — such as gun control, drugs, water and national security — while giving little space to discussion of State concerns: Hollander and Patapan, above n 4, 287. Also, Anderson has noted ‘the elevation of COAG to a central role reflects the new Government's rhetoric of cooperative federalism; the underlying process, however, remains cooperative in the sense of implementing national objectives and the power of the central government to set those objectives is undiminished': Anderson, above n 6, 507.

59 Sid Maher, ‘Hold-out Leader Won't Relent’, The Australian (Sydney), 21 April 2010, 4.

60 Anderson, above n 6, 505–06.

61 Ibid 507.

62 Lyn Genoni, ‘Challenges of Sustaining the COAG Reforms: A Perspective from the “Greta Garbo” State’ (Paper presented at Intergovernmental Relations Conference, Canberra, 14 April 2010).

63 Tiernan, above n 6, 131.

64 New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1, 224 (Kirby J); 332 (Callinan J).

65 Painter, above n 2, 51.

66 Botterill, above n 58, 2.

67 Anderson, above n 6, 506.

68 Wilkins, above n 39, 12.

69 Botterill, above n 58, 2; Ibid; Marian, Sawer, Norman, Abjorensen and Philip, Larkin, Australia: The State of Democracy (Federation Press, 2009), 303-304Google Scholar.

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73 Ibid.

74 David, Cameron and Richard, Simeon, ‘Intergovernmental Relations in Canada: The Emergence of Collaborative Federalism’ (2002) 32(2) Publius 49, 63Google Scholar.

75 Sawer, Abjorensen and Larkin, above n 69, 304–05.In such cases, the intergovernmental agreement itself will not necessarily be placed before parliament.

76 Griffith, above n 2, 17.

77 SirAnthony, Mason, ‘The Australian Constitution in Retrospect and Prospect’ in Robert, French, Geoffrey, Lindell and Cheryl, Saunders (eds), Reflections on the Australian Constitution, (Federation Press, 2003) 7, 18Google Scholar.

78 See, eg, the results of a nationwide survey on civics knowledge, published in Civics Expert Group, Whereas the People: Civics and Citizenship Education (Australian Government Publishing Service, 1994)Google Scholar.

79 Cheryl, Saunders, ‘The Constitutional, Legal and Institutional Foundations of Australian Federalism’ in Robert, Carling (ed), Where to for Australian Federalism? Papers presented at the “Fixing Federalism” round-table (Centre for Independent Studies, 2008) 15Google Scholar.

80 Botterill, above n 58, 1.

81 Egan v Chadwick (1999) 46 NSWLR 563, 574 (Spigelman CJ).

82 See Anderson, above n 6, 504.

83 Cheryl Saunders, ‘Accountability and Access in Inter-government Affairs: A Legal Perspective', above n 71, 129.

84 House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Reforming our Constitution: A Roundtable Discussion (2008) 46.

85 Ibid. In its official response to this inquiry, the government indicated that it was ‘not persuaded that automatic referral of intergovernmental agreements to a parliamentary committee is generally appropriate', but that it would consider questions of transparency and accountability ‘as part of its broader consideration of federal arrangements': Government Response to the House of Standing Committee on Legal and Constitutional Affairs Report, ‘Reforming our Constitution: A Roundtable Discussion’ (27 May 2010) 1.

86 House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Harmonisation of Legal Systems: Within Australia and Between Australia and New Zealand, (2006) 171. In its official response, the government did not accept this recommendation, suggesting that ‘in a practical sense, to give effect to the recommendation would be almost impossible': Australian Government Response: House of Representatives Standing Committee on Legal and Constitutional Affairs, ‘Harmonisation of Legal Systems Within Australia and Between Australia and New Zealand’ (27 August 2008) 18–19.

87 Sawer, Abjorensen and Larkin, above n 69, 305; Administration (Interstate Agreements) Repeal Act 2005 (ACT); Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 13 December 2005, 4719–22 (Jon Stanhope).

88 Sawer, Abjorensen and Larkin, above n 69, 305; Administration (Interstate Agreements) Act 1997 (ACT).

89 Here we draw on a proposal put forward by Wanna et al, above n 7, 15.

90 We acknowledge that obtaining voter approval of this change at a referendum, pursuant to section 128, would pose its own practical difficulties. In this paper, however, we choose to focus on questions surrounding the desirability of this reform. On the challenges generally of amending the text of the Constitution under section 128, see George, Williams and David, Hume, People Power: The History and Future of the Referendum in Australia (UNSW Press, 2010)Google Scholar.

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94 But see Anne, Twomey, ‘Reforming Australia's Federal System’ (2008) 36(1) Federal Law Review 57, 76Google Scholar for an argument for its contemporary revival.

95 Coper, above n 92, 738.

96 For a history of First Minsters’ Conferences, see Martin, Papillon and Richard, Simeon, ‘The Weakest Link? First Ministers’ Conferences in Canadian Intergovernmental Relations’ in J, Peter Meekison, Hamish, Telford and Harvey, Lazar (eds), Canada: The State of the Federation 2002: Reconsidering the Institutions of Canadian Federalism (McGill-Queens University Press 2002) 113, 116–25Google Scholar.

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98 Simeon and Nugent point to several shortcomings in the operation of the FMC that resonate in the Australian context: ‘FMCs are called at the discretion of the prime minister, according to the PM's political needs. There is no regular schedule of meetings. Nor are there any voting procedures or binding decisions': Richard, Simeon and Amy, Nugent, ‘Parliamentary Canada and Intergovernmental Canada: Exploring the Tensions’ in Herman, Bakvis and Grace, Skogstad (eds), Canadian Federalism: Performance, Effectiveness, and Legitimacy (Oxford University Press, 2nd ed, 2008) 89, 97Google Scholar.

99 The Constitution of the Republic of South Africa 1996 (South Africa) ch 3.

100 The stated object of the Act is to

'provide within the principle of co-operative government set out in Chapter 3 of the Constitution a framework for the national government, provincial governments and local governments, and all organs of state within those governments, to facilitate co-ordination in the implementation of policy and legislation…': Intergovernmental Relations Framework Act 2005 (South Africa) s 4.

101 Ibid ss 6–8.

102 (1999) 198 CLR 511.

103 (2000) 202 CLR 535.

104 See George, Williams, ‘Co-operative Federalism and the Revival of the Corporations Law: Wakim and Beyond’ (2002) 20(3) Company And Securities Law Journal 160, 163–64Google Scholar.

105 See, eg, George, Williams, Working Together: Inquiry into Options for a New National Industrial Relations System (Final Report) (State of New South Wales, 2007) 82–83Google Scholar, 93.

106 Lynch and Williams, above n 18, 424.

107 Cheryl, Saunders, ‘Collaborative Federalism’ (2002) 61(2) Australian Journal of Public Administration 69Google Scholar; Wanna et al, above n 7; Lynch and Williams, above n 18.

108 Lynch and Williams, above n 18, 431.

109 RA Schapiro, Polyphonic Federalism: Toward the Protection of Fundamental Rights (University of Chicago Press, 2009) 90–91.

110 Painter, above n 2, 12 and 25–28.

111 Zines, above n 20, 97.

112 Nicholas, Aroney, The Constitution of a Federal Commonwealth: the Making and Meaning of the Australian Constitution (Cambridge University Press, 2009) 344-345Google Scholar.

113 Lynch and Williams, above n 18, 432. Other possibilities discussed include recognition of intergovernmental forums, of the autonomy of each level of government, of the existence and role of local government, and of the need for respect between the tiers of government.

114 In Wakim, McHugh J said that ‘cooperative federalism’ was but a political slogan: (1999) 198 CLR 511, 556. The present Chief Justice of Australia has been explicit in his rejection of that limited view and has highlighted existing provisions in the Constitution that indicate a cooperative dimension: JusticeRobert, French, ‘Cooperative Federalism: A Constitutional Reality or a Political Slogan?’ (2005) 32(2) Brief 6Google Scholar. However, these stop far short of the express amendment contemplated by Lynch and Williams, above n 18.

115 Lynch and Williams, above n 18, 434.

116 Paul McClintock quoted in Alex Boxsell, ‘For COAG, 2011 is crunch year', Australian Financial Review, 5 January 2011, 9.