Chapter 1Overview and views on the bill
1.1On 29 November 2023, the COAG Legislation Amendment Bill 2023 (the bill) was introduced into the House of Representatives by the Assistant Minister to the Prime Minister, the Honourable Patrick Gorman MP.
1.2On 8 February 2024, the Senate referred the provisions of the COAG Legislation Amendment Bill 2023 (the bill) to the Senate Finance and Public Administration Legislation Committee for inquiry and report by 14 March 2024.
Conduct of the inquiry
1.3The committee agreed to open submissions on 8 February 2024, and set 28February 2024 as the closing date. The committee wrote to leaders of state and territory governments and a range of organisations and individuals, drawing their attention to the inquiry and inviting them to make a submission.
1.4The committee received three submissions, which are available on the committee's webpage and listed in Appendix 1.
1.5Details of the inquiry, including links to the bill and related documents, are published on the committee's webpage.
Acknowledgement of submitters
1.6The committee thanks all those who contributed to the inquiry by making submissions to the committee.
Report structure
1.7This chapter begins by setting out the purpose and key provisions of the bill. The chapter concludes by outlining the key issues put forward in evidence and presenting the committee's views and recommendation.
Purpose of the bill
1.8The bill seeks to make minor amendments to various Commonwealth Acts to update references to COAG and Ministerial Councils to reflect the cessation of the Council of Australian Governments (COAG) on 29 May 2020 and provide consistency in Commonwealth legislation.
Key provisions of the bill
1.9The bill has two schedules. Schedule 1 has 3 parts. Schedule 2 also has 3 parts.
1.10Schedule 1 proposes to update references relating to the 'COAG Reform Fund' because of the cessation of COAG and the establishment of a new architecture for federal-state relations.
1.11Schedule 1 Part 1 would amend the title, short title, and references within the COAG Reform Fund Act 2008 to substitute the outdated term 'COAG' with the term 'Federation'.
1.12Schedule 1 Part 2 would amend several Acts to:
substitute the outdated definition of the 'COAG Reform Fund' with the definition of the 'Federation Reform Fund'; and
substitute references to the 'COAG Reform Fund Act' with the term 'Federation Reform Fund Act'.
1.13The Federation Reform Fund is defined to mean the Federation Reform Fund established by section 5 of the Federation Reform Act 2008, as it would be renamed upon commencement of items 1 and 2 of Schedule 1 of this bill.
1.14Schedule 1 Part 3 would amend several Acts to substitute outdated references to 'COAG Reform Fund', wherever occurring, with the term 'Federation Reform Fund'.
1.15The Acts subject to the amendments under Schedule 1 Parts 2 and 3 of the bill are the:
Disability Care Australia Fund Act 2013;
Disaster Ready Fund Act 2019;
Federal Financial Relations Act 2009;
Fuel Indexation (Road Funding) Special Account Act 2015;
Future Drought Fund Act 2019;
Housing Australia Future Fund Act 2023;
Medical Research Future Fund Act 2015;
Offshore Petroleum and Greenhouse Gas Storage Act 2006; and
Proceeds of Crime Act 2002.
1.16Schedule 2 proposes to deal with the cessation of COAG and changes to intergovernmental architecture by amending outdated references to COAG and COAG Councils or Ministerial Councils.
1.17Schedule 2 of the bill responds to the recommendations of the Review of COAG Councils and Ministerial Forums (the Review), led by Mr Peter Conran AM, which was agreed by the National Cabinet on 23 October 2020.
1.18Schedule 2 specifically seeks to action Recommendation 30 which called on the Commonwealth government to introduce a bill to make amendments to the outdated references to COAG Councils and Ministerial Forums in Commonwealth legislation.
1.19Schedule 2 Part 1 would amend several Acts to:
substitute the outdated term of 'COAG' with the term 'First Ministers' Council', which is defined flexibly to mean a body (however described) that consists only of, or that includes, the Prime Minister, the Premiers of each State and the Chief Ministers of the Australian Capital Territory and Northern Territory;
change the definition of the term Ministerial Council to mean a body (however described) that consists of the Minister of the Commonwealth, and the Minister of each State and Territory, who is responsible, or principally responsible, for matters relating to a particular portfolio issue; and
substitute the names of specific Councils (for example the Standing Council on Health) to Ministerial Council.
1.20The Acts subject to the amendments under Schedule 2 Part 1of the bill are the:
Australian Curriculum, Assessment and Reporting Authority Act 2008;
Australian Education Act 2013;
Australian National Preventive Health Agency Act 2010;
Biological Control Act 1984;
Defence (Road Transport Legislation Exemption) Act 2006;
Fisheries Management Act 1991;
Healthcare Identifiers Act 2010;
My Health Records Act 2012;
National Disability Insurance Scheme Act 2013;
National Health Reform Act 2011;
National Transport Commission Act 2003;
National Vocational Education and Training Regulator Act 2011; and
Offshore Petroleum and Greenhouse Gas Storage Act 2006.
1.21The Councils subject to the amendments under Schedule 2 Part 1 of the bill are the:
Council of Australian Governments and Education Council;
Australian Transport Council;
Standing Council on Health;
Ministerial Conference;
Australian Health Ministers' Advisory Council; and
Greenhouse Gas Storage Ministerial Council.
1.22Schedule 2 Part 2 would amend the Infrastructure Australia Act 2008 to repeal both the outdated definition of 'COAG' and the subsection which refers to the Minister having regard to any decisions by COAG. These references would be substituted with the Minister having regard to any relevant decisions of a body (however described) that consists only of, or that includes, the Prime Minister, the Premiers of each State, and the Chief Ministers of the Australian Capital Territory and Northern Territory.
1.23Schedule 2 Part 2 would also amend the Water Act 2007 to substitute the reference to 'Council of Australian Governments' with the term 'First Ministers' Council' and insert the definition of First Ministers' Council as set out above.
1.24Schedule 2 Part 3 would make transitional provisions in relation to actions taken, or started but not finished by, COAG or a Council specified above prior to commencement of this Act. Schedule 2 Part 3 provides flexibility for the relevant Minister to make rules to deal with any transitional matters in relation to this Act that may arise.
Consultation
1.25The Department of the Prime Minister and Cabinet (PM&C) undertook a consultation process on exposure draft legislation on the amendments contained in both schedules of the bill with all states and territories in 2021.
1.26All relevant Australian Government departments whose portfolio legislation would be impacted by the amendments proposed by the bill have also been consulted.
Commencement
1.27Both schedules of the bill would commence on the day after this Act receives Royal Assent.
Financial Impact
1.28The Explanatory Memorandum states that the bill has no financial impact.
Consideration by the Scrutiny of Bills Committee
1.29The Scrutiny of Bills Committee did not make any comment on the bill.
Compatibility with human rights
1.30The Parliamentary Joint Committee on Human Rights did not make any comment on the bill.
Views on the bill
Support for the bill
1.31PM&C submitted their support for the bill, arguing that it would improve administrative consistency across the public sector and provide greater flexibility in the event of future changes to federal-state architecture.
Other issues raised by submitters
Matters relating to a previous iteration of the bill
1.32PM&C drew the committee's attention to a previous iteration of the bill, the COAG Legislation Amendment Bill 2021 (the 2021 bill), which was introduced in Parliament in September 2021 and lapsed at the dissolution of Parliament in April 2022.
1.33The current bill shares many similarities with the 2021 bill across Schedules 1 and 2. However, the 2021 bill contained a third Schedule which sought to extend disclosure protections for the deliberations and decisions of the Cabinet and its committees to also apply to National Cabinet. This schedule and its contents are entirely excluded from the current bill.
1.34This observation was echoed by Honorary Professor Andrew Podger AO who submitted that the current bill is a major improvement on the 2021 bill chiefly due to its exclusion of the provisions in the 2021 bill's Schedule 3.
Inconsistencies in the bill
1.35Honorary Professor Podger drew the committee's attention to two possible errors in the bill, under Schedule 2 Part 1 Items 20 and 30 which currently reads 'Omit “COAG”, substitute “the Council of Australian Governments”.'
Matters relating to the Constitution
1.36Mrs Alison Ryan was concerned that the bill ran counter to Australia's Constitution.
Committee View
1.37The committee concurs with the arguments presented by PM&C that the bill provides an opportunity to improve administrative consistency across the public sector and provide greater flexibility in the event of future changes to federal-state architecture.
1.38With respect to the matters raised by Honorary Professor Podger, the committee recommends the Australian Government review Schedule 2 Part 1 Items 20 and 30 for accuracy.
1.39With respect to the constitutional matters raised, the committee is confident the bill does not raise any constitutional concerns.
Recommendations
1.40The committee recommends that the Australian Government review Schedule 2 Part 1 Items 20 and 30 for accuracy.
1.41The committee recommends that the bill be passed.
Senator Louise Pratt
Chair