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Constitutional Incongruence: Explaining the Failure of the Council of the Australian Federation

Published online by Cambridge University Press:  01 January 2025

Shipra Chordia  and
Andrew Lynch
Shipra Chordia
Affiliation:
Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South Wales
Andrew Lynch
Affiliation:
Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South Wales
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Abstract

The establishment and rise of the Council of Australian Governments (COAG) is, on balance, a story of the successful development of an executive-based institution for cooperative governance in the Australian federal system. By contrast, the Council of the Australian Federation (CAF), created in 2006 as a forum for interstate co-operation and policy development, has been far less effective. This article explores the reasons behind CAF's difficulties after a very short-lived initial impact. Integral to this account is the significance of Canadian experience of horizontal intergovernmental relations, which directly inspired the Australian Premiers to found CAF. The numerous indications of political congruence – some temporary, others systemic – between the Canadian and Australian settings obscured a deeper constitutional incongruence between the two jurisdictions and this is fundamental to appreciating CAF's failure as a transplant. CAF's ability to operate effectively as a significant institution was inevitably constrained by the parameters of the Australian federal system that its establishment was, in many ways, seeking to transcend.

Type
Article
Information
Federal Law Review , Volume 43 , Issue 3 , September 2015 , pp. 339 - 367
Copyright
Copyright © 2015 The Australian National University

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Footnotes

We thank Harkiran Narulla for research assistance in the preparation of this article and Jennifer Menzies for her comments on an earlier draft.

References

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69 Ibid 53.

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136 The operation of s 92 of the Australian Constitution has also been aided by other provisions that have promoted free internal trade, including s 90, which gives the Commonwealth exclusive domain over customs and excise; s 117, which guarantees interstate residents freedom from discrimination; and s 99, which prohibits the Commonwealth from giving any state a preference, including by taxation.

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165 Painter, above n 1, 96.

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171 Ibid 102.

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173 Ibid.

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182 Erk and Koning, above n 180, 365.

183 Brown, Market Rules, above n 81, 200.

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190 Leclair, above n 92, 57.

191 Commonwealth of Australia, Towards Responsible Government – Phase One (Report of the National Commission of Audit, February 2014) xxxvi (Recommendation 11).

192 Kildea and Lynch, above n 2.

193 Australian Government, Reform of the Federation White Paper – Terms of Reference, <https://federation.dpmc.gov.au/terms-reference>.