Council of Australian governments in Australian federalism



The following article invites to take as neak peek into the character and issues of operation of the most disputable body in Australian federalism — the Council of Australian Governments (COAG). It was set up to assist with clarification and division of roles and responsibilities between the Commonwealth and the States and Territories and to ensure sovereignty in their own spheres. Currently it is the main tool for facilitating intergovernmental relations in issues of national significance or in policy spheres where cooperative effort of both federation and its constituent parts is needed, including matters of federalism Though COAG has been showcasing some impressive results with its broad-ranging Reform Agenda, working to produce a White Paper on the Reform of Federation and elaborating intergovernmental agreements, its existence has been am atter of discussion since its establishment. We are going to look into COAG’s place in Australian federalism and intergovernmental relations in particular, its current flaws (such as the uncertainty of COAG’s legal status, lack of public record, transparency and accountability, suitability of ac hosen form (a conference) for fostering intergovernmental relations) and see if these flaws are sufficient to question the effectiveness of its work in whole and if there are ways to change and improve rather than destroy. The article focuses of practical problems of COAG.

Keywords: Commonwealth of Australia, COAG, intergovernmental relations

The Council of Australian Governments (COAG) is the peak intergovernmental forum in Australia. It was established in 1992 when all governments within Australia agreed to work together to tackle significant issues that are important to as society and nation. Meetings of COAG are attended by the Prime Minister, state Premiers, territory Chief Ministers and the President of the Australian Local Government Association. ALGA’s representative attends meetings as a non-voting member. Local government is not formally recognized in the Australian Constitution. This issue has been discussed for decades; in 2013 there was an attempt to carry out the referendum on amending section 96 of the Constitution and entitle the Commonwealth to grant financial help to local government. The timing though was admittedly inappropriate and the predictably unsuccessful referendum could lessen possibility of future referendums or their positive outcomes.

One of the main purposes of COAG’s creation was increasing cooperation between governments on matters of national interest. Constitution of the Commonwealth provides that vast spheres of policy can be regulated both by the States and Territories and the Commonwealth with limited legislative powers of the Commonwealth and the right of the States to legislate on any issue. It is clear that constitutional powers of different levels of government widely overlap each other.

Mark Bruerton, Adelaide Law School PhD candidate, examines reasons why COAG exists: «In the absence of a constitutional provision, it is left for the governments to design and participate in their own forum to manage their relationship. Currently, this forum is COAG» [1].

Prior to the establishment of COAG cross-jurisdictional issues and matters of national importance were discussed at ministerial conferences, now there are several ministerial councils instead, which are a part of the COAG’s structure. A similar structure has always been necessary as the Australian federalism has some distinctive features, such as:

1. a comparatively high degree of shared functions between governments; the Australian Constitution creates a concurrent federal structure, and intergovernmental relations are the key to effective operation;
2. a distinctive centralizing trend;
3. vertical fiscal imbalance: the states are highly financially dependent on the Commonwealth.

COAG has changed over years, widened and fine-tuned its structure, introduced an ambitious programme of reforms — COAG Reform Agenda, produced a White Paper on the Reform of Federation, worked towards reaching effective agreements in a wide range of policy spheres and yet there is a strong opinion that COAG is a «dysfunctional farce» that should be abandoned. Groups that follow this point of view tend to blame COAG for structural and operational flaws; some even wonder whether the form of a conference is suitable for facilitating cooperative federalism as it exists in Australia. Queensland Ex-Premier Campbell Newman regularly attacked processes going within COAG, but still used its resources to discuss urgent issues [2].

It is curious that COAG, even though it has been criticized along the way, still demonstrates relatively stable existence for over than two decades (and the ritual of state and territory leaders’ gatherings exists from the beginning of the federation in Australia). In 2008 Kevin Rudd, ex-Premier of Australia, gave COAG a new life by declaring an era of cooperative federalism, which implies a collective effort of national, state and local governments in resolving common issues, and an intention to «turn COAG into the workhorse of the nation» [3]. Annual assessments of its work prepared by the COAG Reform Council showed mixed picture with good progress in some areas and risk of delay and failure in others.

So, is COAG a necessary evil or a positive good? An insight into current issues of COAG’s operation might help to get a clearer picture.

Legal status of COAG.

The first problem that seems to stand out from a theoretical point of view is uncertainty of the legal status of COAG. The Constitution does not contain provisions for establishing COAG; there are also no formal regulation of other kinds, which leaves COAG wholly dependent on the executive will. In fact, all structures for intergovernmental relations in Australia have been developed in an ad hoc manner, but since COAG has national importance it was assumed it needed formal structure for reasons of accountability, transparency and better equipment for reform delivery. It has overgrown the state of occasional meeting platform for leaders and cannot be left to the sole discretion of the Prime Minister. On the other hand institutionalization may lead to inflexibility and slow down the decision-making process. The core idea of creating COAG was facilitation of achieving policy objectives in a joint effort of governments of different levels, and elimination of these two factors — flexibility and speed — would certainly interfere with basic principles of intergovernmental relations, i.e., effectiveness and efficiency.

Australia’s experience is not unique, though; there are some other examples of the recognition of the need for intergovernmental cooperation, which has resulted in the development of «summitry» — a policy system based on meetings of leaders of jurisdictions: First Ministers’ conferences in Canada, for instance, have similar origin, structure and contents. There are no structures like COAG in the Russian Federation, The United States of America does not have an institutionalized intergovernmental body as well due to diversity and huge territory and prefers to create ad hoc committees and working groups to negotiate on specific issues. There are also some long-lived institutions such as, for instance, the National Governors Association (NGA), where «governors share best practices, speak with a collective voice on national policy and develop innovative solutions that improve state government and support the principles of federalism» [4]. There are several challenges Australia is facing that should be identified and tackled now, rather than in an ad hoc manner. This, as federalism researches believe, can only be achieved through better formal intergovernmental cooperative institutional mechanisms [5].

Lynsey Blayden has listed four potential ways suggested to formalise COAG [6]:

1. The negotiation of an intergovernmental agreement (IGA) setting out requirements for the governance of COAG;
2. Establishing a complementary legislative regime for COAG;
3. Entrenching COAG in the Constitution;
4. Including reference in the Constitution to cooperative federalism.

Though every suggestion has its advantages and disadvantages, which Kildea and Lynch studied closely in «Entrenching ‘Cooperative Federalism: Is It Time to Formalise COAG’s Place in the Australian Federation?» [7], it appears that the legislative regime would be a compromise. It will allow defining the legal status of COAG and will remain more flexible compared to the amendments to the Constitution and able to do long-term work to resolve other issues in COAG’s operation and Agenda.

Despite the number of fundamental researches on the problem and remaining concern, in practice there is still no visible movement towards formalizing COAG.

Transparency and accountability.

The second feature of COAG, which it is often blamed for, is lack of transparency.

Each COAG meeting results in a communiqué — a document containing brief information about outcomes of the meeting. Agendas of meetings are not available publicly prior to meetings. Communiqués are the only public records and are often of a declarative type, formulating priorities and general principles and highlighting main steps for further work. For this reason, they are often compared to press releases. For instance, one of the latest communiques acknowledges the need of «close collaboration in areas of shared responsibility, including competition, tax, innovation, infrastructure, cities and regulation, as well as in health and education» but doesn’t contain al ist of measures to proceed with.

The task of following COAG is equally difficult for both experts and non-professionals since there is nothing to base on. Clear information about policy objectives and strategies is necessary to increase understanding of goals of political leaders and reasoning behind them. Besides, the lack of public understanding of the role and operation of COAG seems to have a significant impact to the commitment of the society and willingness of the citizens to participate, and the government does little to explain it.

The accountability principle for the means of intergovernmental relations is formulated as «governments must be subject to appropriate checks and balances to ensure their actions and decisions are scrutinized and justified» [8] and is in close connection with the matter of transparency.

An unknown but large number of intergovernmental agreements presents a certain challenge for accountability; firstly, many such arrangements affect the accountability of executive governments to their parliaments at both State and Commonwealth levels. Secondly, many such arrangements affect the legal accountability of public decision-makers to courts and other independent review mechanisms.

Cheryl Saunders believes that accountability and transparency are problems in their own right, and if these problems were resolved or ameliorated, the effectiveness of intergovernmental arrangements almost certainly would be enhanced as well; and in the process, the constitutional questions might be avoided [9]. McClintock said since COAG’s role had significantly changed a greater commitment to effective and timely accountability was required. Saunders also gives most obvious examples of problems connected with accountability and transparency:

− intergovernmental character of the bodies makes them fall outside the normal accountability chain and no single parliament has responsibility for them;

− ministerial meetings within COAG are held in camera, available information is limited and off the beaten track of sources about government and law, so it is difficult to «follow policy initiatives that involve a ministerial council process»;

− the accountability of the Commonwealth government to Parliament for intergovernmental and other spending schemes has diminished over time.

Despite these concerns, it seems to be possible to develop approaches to intergovernmental cooperation that would minimize or avoid these difficulties. Saunders states that an essential starting point is to accept accountability and transparency as fundamental principles and consider them in designing all arrangements. In addition, such arrangements must be structured in a way that matches the rest of the system of government as close as possible. Moreover, some measures has been already taken: there was a major structural change in COAG, and a complete list of IGAs. No jurisdiction kept reliable track of intergovernmental agreements, even though they are often a form of soft law, and just 5 years ago there were unified list of IGAs.

Finally, is a conference an appropriate form for fostering intergovernmental relations? Mark Bruerton picked out three conditions to prove that a conference is aw ell-suited form for facilitating cooperative federalism: comprehensive membership, a high level of priority recognition and bi-partisan support and proved that COAG complies with them easily. In his article «Ritualistic masochism or necessary evil? COAG and Australian federalism» released in 2012 Bruerton introduced statistical data proving that each jurisdiction evidenced a high level of priority recognition: leaders of each jurisdiction attended between 87 % and 97 % of conferences they were invited to attend, the average attendance of the Commonwealth and the states/territories was over 90 % and in situations when leaders could not attend, they were inclined to send a representative rather than allow the jurisdiction to go completely unrepresented. Bruerton also notes that since conferences (and COAG) are set to become a permanent facilitation body for cooperative federalism, it requires commitment from both parties which form government in Australia: the Australian Labour Party and non-labour coalition between the Liberal Party of Australia and the National Party of Australia. Statistics of meetings showed that both parties were in general involved equally [10].

Conclusion.

Most federations have developed their own systems of intergovernmental relations to deal with issues that may arise due to division of powers between different levels of government and inevitable overlap of powers.

Clearly, any federation reform will need the states, territories and Commonwealth to work together to meaningfully address possible pressures and look at structural reforms to ensure services can be delivered in the most efficient way. The need for coordination and cooperation between governments of different levels in a federation is obvious.

COAG is the main Commonwealth-State mechanism for seeking co-operative solutions to difficult national issues that require a national outcome, but involve many State responsibilities under the current constitutional arrangements within the Federation. The COAG is currently dealing with a range of difficult and complex issues, but it remains a platform for finding the best common position among states, territories and the Commonwealth, developing procedures to share and exchange information and identifying the most efficient policy and programms.

Intergovernmental relations affect almost every aspect of government in Australia. COAG as an informal executive agency with no constitutional or legal status whatsoever plays a significant role in maintaining and managing the distribution of powers and responsibilities in Australia, providing a forum for negotiations between the leaders of the Commonwealth and its constituent parts. The purpose of COAG’s existence and its intention is to facilitate coherence in national policy development. The problems of COAG are more than just inner flaws in organization and functioning. They arise from general problems of Australia’s federal structure and require cooperative effort in tackling them within and along the whole federalism structure. As Paul McClintok stated in 2012, the weakness of the current model was that this enormous overlap is not matched by any real commitment to strengthen the institutions, which are the foundation of a melded system. In addition, it is crucial to address these weaknesses to achieve real reform across complex issues [11].

The latest Australian Constitutional Values Survey conducted by Newspoll agency for Griffith University in 2014 showed that 92.7 % of respondents think that intergovernmental collaboration is a desirable feature of a system of government with different levels. COAG agenda is ambitious, just like it should be, and for COAG to be the most important institution there is still room for improvement, but it seems wise to continue managing interactions between Commonwealth and State governments with its help.

References:

1. Bruerton M. COAG: failing, overburdened and dysfunctional, but the best we have. 2013. The University of Adelaide [Электронный ресурс] URL: https://blogs.adelaide.edu.au/public-law-rc/2013/04/24/coag-failing-overburdened-and-dysfunctional-but-the-best-we-have/ (дата доступа: 05.02.2017).
2. Premiers Rebel Over Federal Budget Cuts; Demand COAG Meeting Before July 1. 2014. URL: http://australianpolitics.com/2014/05/18/premiers-rebel-over-budget-cuts.html (дата доступа: 18.11.2016).
3. Cardwell A. PM — Commitment to reform COAG meeting: transcript of the interview of 20 December, 2007. URL: http://www.abc.net.au/pm/content/2007/s2124544.html (дата доступа: 19.11.2016).
4. Mission Statement of The National Governors Association (NGA) [Электронный ресурс] URL: http://www.nga.org/cms/home.html (дата доступа: 28.11.2016).
5. Reshaping Australia’s Federation: A New Contract for Federal–State Relations. Appx 1.Intergovernmental relations in Federal Systems. Melbourne: Business Council of Australia, 2006. P. 35.
6. Blayden L. Briefing paper COAG. NSW: Parliamentary Research Service, 2013. № 6.
7. Kildea P., Lynch A. Entrenching Cooperative Federalism: Is It Time to Formalise COAG’s Place in the Australian Federation? // Federal Law Review. Vol. 39. № 103. 2011.
8. Allen G., Keating A., Saunders S., Williams G. and others. Reshaping Australia’s Federation: A New Contract for Federal–State Relations. P. 11.
9. Saunders C. The constitutional, legal and institutional foundations of Australian federalism // Where To For Australian Federalism? ed. Robert Carling. Sydney: Centre for Independent Studies, 2008. P. 152–6.
10. Bruerton M. Ritualistic masochism or necessary evil? COAG and Australian federalism // The University of Adelaide Public Law Blog. 2012. URL: https://blogs.adelaide.edu.au/public-law-rc/2012/08/02/ritualistic-masochism-or-necessary-evil-coag-and-australian-federalism/
11. Rethinking Federalism. Australian National University, Crawford School of Public Policy, 2012. [Электронный ресурс]. URL: https://crawford.anu.edu.au/news-events/news/201/rethinking-federalism (дата доступа: 23.11.2016).