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.