Dr Andrew Banfield and Dr Nathan Church, Politics and Public Administration

Key issue

Australian inter-governmental decision-making underwent multiple changes during the previous parliament, predominantly in response to the COVID-19 pandemic. The former Council of Australian Governments (COAG) was discontinued, with its functions and operations replaced with a National Cabinet. When the Government went into caretaker mode on 11 April 2022, National Cabinet had existed for just over 2 years, all of which were under COVID-19 conditions. While the enduring nature of the pandemic remains uncertain, the National Cabinet will face opportunities and challenges in navigating other policy development and service delivery requirements throughout the next 3 years.

Executive federalism in Australia

Executive federalism is the necessary process of negotiations and deliberations within ‘the executives of the different levels of governments with the federal system’. In Australia, the concurrent nature of government responsibilities, 'requires extensive intergovernmental relations and agreements' and the resultant systems 'are beyond parliamentary scrutiny and responsibility'. Concurrent federalism can be described as a ‘marble cake’ where the Commonwealth, state, and local governments have integrated policy goals and administrative duties, such as health and education. These elite negotiations have a long history in Australia, starting first with the pre-Federation Premiers’ Conferences.

The Council of Australian Governments (COAG) was established in 1992 to be a ‘permanent body for ongoing consultation between the Prime Minister, Premiers, Chief Ministers and the President of the Australian Local Government Association (ALGA)’. Despite launching with great fanfare, COAG became ‘a slow bottom-up framework … that too often resulted in lowest common denominator outcomes’. Indeed, as early as June 1993, COAG underwent the first of 8 reviews to reduce overheads and streamline processes. In 2020, the Conran Review recommended a similar course of action, rationalising COAG’s councils and ministerial forums from 41 to 18- with only 9 designated as regular meetings. This process of review and cull led to Prime Minister Scott Morrison’s observation of the forum as a place ‘where good ideas went to die’.

In concurrent federal systems, decision making tends to shift upwards toward national leaders, creating both advantages and risks. Benefits include quicker decisions as all the primary players are in a single room, while also allowing the smaller states and territories to have an equal voice at the table. However, executive federalism is not without shortcomings. For example, its decisions have been criticised as anti-democratic by operating outside the scrutiny of the Parliament and disregarding parliamentary and democratic processes.

Canada also has a long history with executive federalism, where most constitutional public policy considerations take place. First Minister Meetings (FMM) are those called and chaired by the prime minister to discuss ad hoc matters of ‘national importance and concern’. By contrast, Canada’s provincial and territorial leaders regularly meet to discuss issues of mutual concern in the Council of the Federation. The Council of the Federation operates in form and function like the Council for the Australian Federation. That is, only state and territorial chief executives, absent the federal level, and Chair responsibilities are rotated among the members.

Rise of National Cabinet

On 13 March 2020, in response to the COVID-19 pandemic, the National Cabinet was established ‘to coordinate and deliver a consistent national response to the Covid-19 pandemic’ Since its inception, National Cabinet has met more than 60 times. This clarity of purpose largely aligned with the new structure, with Centre for Economic Development of Australia’s (CEDA) Chief Economist, Jarrod Ball, assessing National Cabinet as ‘at its best when it agrees on a broad framework, then leaves the states and territories to implement the solutions’. However, as all levels of government continue planning for a post-pandemic society, ACT Chief Minister Andrew Barr expressed in March 2022 a widely-held sense that National Cabinet should change from its current ‘crisis management arrangement’ to a structure that ‘leads to a more constructive Federation’. Indeed, survey data from mid-2020 indicated a strong public sentiment that National Cabinet should focus on long-term reform, particularly on climate change, health outcomes and job creation. Some of this work may fall within the purview of the National Federation Reform Council, comprising National Cabinet members plus Treasurers and the ALGA President.

In terms of ongoing reform, Independent Senator Rex Patrick called for a Senate inquiry into the current National Cabinet arrangements, contending that ‘we need to look ahead to see whether the current ad hoc machinery is fit for purpose and delivers fair outcomes for all Australians, especially the smaller States and regional and remote Australia’. CEDA has also recommended other reforms including ‘greater disclosure of deliberations, agreed outcomes and commitments from National Cabinet’, and advocated for a federal-state intergenerational report.

National Cabinet as distinct from Cabinet

Shortly after National Cabinet was established, Prime Minister Scott Morrison articulated the differences he saw between COAG and National Cabinet:

One of the reasons why National Cabinet has worked is it has actually operated as a Cabinet. And that means it operates within Cabinet rules and it operates under the Federal Cabinet’s rules and that relates to the security of documents, process, procedure … Having these groups operate like a fair dinkum Cabinet, I think has been really important. We’re all members of Cabinet so we all understand what those rules are and I don’t think that has been the MO for how COAG has operated and I think that’s a really big change.

This emphasis on ‘Cabinet’ subsequently led to questions as to whether National Cabinet was legally under the 'Cabinet-in-Confidence' information security designation.

At the heart of this query is the core constitutional convention of responsible government. The Constitution does not refer to ‘Cabinet’ or ‘prime minister’, but their existence is not in doubt. The Crown appoints ministers who are members of parliament, thus allowing direct engagement from other parliamentarians. Ministers, led by the prime minister, share in collaborative decision-making (collective ministerial responsibility). Individual ministers will have the confidence of the Parliament and be responsible for their department. Any allegations of incompetence or impropriety are to be appropriately investigated and dealt with and if the minister is found at fault, the convention requires them to resign.

The Coalition Government believed steadfastly that National Cabinet was constitutionally a Cabinet and thus the convention of Cabinet confidentiality (collective ministerial responsibility) applied to its deliberations. Senator Patrick challenged this notion with a freedom of information (FOI) request for public access to certain National Cabinet documents. The Government argued that National Cabinet was a committee of Cabinet, and accordingly exempt from FOI requests.

This claim of cabinet confidentiality was challenged and rejected by the Administrative Appeals Tribunal (AAT) on the grounds that the evidence was 'persuasively against the National Cabinet being a committee of the Cabinet within the meaning of the statutory expression’ (para. 210). Indeed, Justice White observed ‘mere use of the name “National Cabinet” does not, of itself, have the effect of making a group of persons using the name “committee of the cabinet”’.  Federal Cabinet committees derive their power and membership from the Cabinet. National Cabinet does not meet this threshold as only the prime minister is a member of the federal Cabinet.

Discussions about the ‘Cabinet-like’ nature of National Cabinet dominated parliamentary debate, even in the aftermath of the AAT ruling. Indeed, the Government subsequently introduced legislation to exempt National Cabinet from FOI requests, but due to a lack of parliamentary support, the Bill lapsed at dissolution. The 47th Parliament will have the opportunity to focus on how National Cabinet should be structured to facilitate operations, including questions of secrecy if required.

National Cabinet during the 47th Parliament

The change of government following the 2022 election will likely have substantial implications for National Cabinet’s scope and processes. The prime minister’s role is highly pertinent, as former West Australian premier, Colin Barnett, has noted: ‘My experience of the COAG was that the way it worked very much depended on the attitude of the prime minister of the day. I expect the national cabinet will be the same’. For his part, Prime Minister Anthony Albanese has previously committed to maintaining National Cabinet as the formal mechanism for inter-governmental engagement.

More broadly, the change of government offers a potential reset in direction of National Cabinet. For example, when asked at the National Press Club in January 2022 about federation reform, Anthony Albanese responded:

You need consistency and we need to work the issues through. If we do, there are massive efficiencies. We need to get back to the growth agenda and the microeconomic reform and productivity agenda. And part of the way that you do that is through Federation reform. The duplication that's there is a problem for our economy, but more importantly, during this pandemic, it's been a source of enormous frustration from people as they look at buck passing. And we need to do better.

Senior government minister, and former ACT chief minister, Senator Katy Gallagher, has also signalled a change in focus, contending:

I think the National Cabinet process has, well I think it’s fractured the federation in a way from when I sat at COAG. It was a much more collaborative, equal partnership, it seems you know, national cabinet was a sort of construct to, in a sense, become a PR machine through the pandemic. So I think there’s a real opportunity to get back to working with the states around the table. I think it should not be too ambitious because its hard to get through some reforms. But you know, if you pick off a couple of areas where you want to work with the states and territories on improving things, I think there’s a real opportunity, you know, less division, more consensus and agreement about what needs to get done.

In terms of establishing its reform agenda, the incoming Government has cited housing supply as an example policy area for heightened National Cabinet focus. During the election campaign Jason Clare (as Shadow Minister for Housing) announced the ALP’s policy to establish a National Housing Supply and Affordability Council, which would directly report to National Cabinet. The previous National Housing Supply Council was disbanded in 2013, following the last change of government. In contrast, the current National Cabinet architecture designates housing policy to the Council on Federal Financial Relations (Treasurers meeting).

Overarching this, and other policy discussions, is an expectation the new Government will follow through on its commitment to return the ALGA President to the forum. This would provide all 3 levels of government with National Cabinet representation.

Further reading

Jarrod Ball, Australia’s Federation: Post-Pandemic Playbook, (Sydney: Centre for Economic Development of Australia, August 2020).

Tom Burton, ‘A New Role for National Cabinet’, Australian Financial Review, 23 May 2022

Marinella Padula, The National Cabinet and COVID-19: a New Future for Federal Relations?, (Melbourne: Australia and New Zealand School of Government, 12 October 2021).

Cheryl Saunders, A New Federalism? The Role and Future of the National Cabinet, University of Melbourne School of Government, Policy Brief no. 2, 1 July 2020.

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