'Undemocratic, opaque, ad hoc': does COAG still work?

Before he was elected as New South Wales premier, Barry O’Farrell warned the Council of Australian Governments at times resembles “a fourth arm of government” with extensive power over funding and policy, despite having a basis in neither the constitution nor statute. But in a federation of states with shared governmental responsibility, is there any other way?

A review of federation arrangements by the federal government has opened up a new debate on intergovernmental relations. And a decision by the Abbott government to abandon the COAG Reform Council — a secretariat designed to oversee and monitor agreements — is feeding concerns over a lack of rigidity and transparency in negotiations and agreements, and the centralisation of power in Canberra.

Since emerging in 1992 out of the Special Premiers’ Conferences, COAG has waxed and waned in significance. Reforms under the Rudd government saw the forum move from a leaders’ summit to something more central to the operation of the federation. This has increased qualms about how it functions, with calls to give the states more control while making the forum more permanent and transparent.

Jennifer Menzies, a former secretary for the Council for the Australian Federation and member of the Commonwealth Grants Commission, believes the ad hoc nature of COAG inhibits its potential effectiveness. “As a federation, Australia has under-invested in the mechanisms to manage the relationship between the different levels of government,” she said. “COAG is dependent on the whim of the prime minister who controls both the number of meetings and the agenda … I believe there needs to be greater institutionalisation of COAG.”

Menzies, an adjunct senior research fellow at Griffith University, told The Mandarin that “at the moment there is no structure supporting COAG to support strategic decision-making and deliberation. Political leaders give limited time and attention to intergovernmental relations and decisions are often made as a last minute scramble, leading to negotiated and compromised outcomes.

“A permanent institution to facilitate intergovernmental relations in Australia would signal the value of our federal system and create a place to improve practice and deepen the understanding of intergovernmental decision-making. It would compensate for the defects of the present ad hoc system which include incomplete and erratic attention from first ministers as well as the constant churn of membership.”

In addition, Menzies offers the following suggestions to improve COAG:

• “Establish an intergovernmental agreement which outlined the role of the forum and the principles under which it would operate”;
• “Establish a joint Commonwealth/state secretariat to represent the equal partnership between the different levels of government;
• “Ensure a set number of meetings a year to ensure the flow of work and decision-making in a more orderly manner;
• “The secretariat would develop as a centre for expertise in intergovernmental relations and develop the capacity to identify and build on best practice. They would also become a repository for expertise in intergovernmental policy development and agreements and give the nation an institutional base and continuity in managing our system of intergovernmental relations”; and
• “Appoint a federal minister for intergovernmental relations, as in the Canadian system, to give continuity to managing these relationships and removing some of the pressure from the prime minister, who has limited attention to give to these issues. This would also address the transparency concerns of academics because this minister would be open to parliamentary scrutiny.”

Increasing transparency in discussions

Paul Kildea, lecturer at University of New South Wales Law and a former research fellow and director at the Gilbert + Tobin Centre of Public Law’s federalism project, thinks politicians need to focus on improving COAG transparency. The fact that agendas are not pre-released and often finalised at the last minute “makes it difficult for academics and community groups who are interested in having input”, he says.

He argues “usually it’s not especially clear what COAG has discussed. Parliament has audio recordings and Hansard. There are some benefits to having discussion behind closed doors, but COAG minutes tend to be overly sparse.”

Kildea agrees the states should be given greater power, telling The Mandarin it’s “problematic that the Commonwealth has so much control over COAG”. To give the states more input into decision-making, he suggests sharing the chairing and hosting of meetings between the prime minister and premiers, and concurs on the idea of establishing a joint secretariat.

COAG alters the balance between the executive and parliament, Kildea believes, strongly favouring the executive and potentially undermining the role of the parliament. This has significant implications for the functioning of democracy at state level. “It would be a brave state parliament that turned around and decided not to proceed with a policy decided at COAG, defying not only the premier but other jurisdictions,” he said.

There is a parallel with treaty-making processes in that such negotiations privilege the executive, but Kildea points out that the Joint Standing Committee on Treaties examines and reports on new agreements with foreign states, allowing the Parliament some input.

“One improvement,” said Kildea, “would be a parliamentary committee on federalism to inquire into intergovernmental agreements. This would mean commitments being made around the COAG table would be subject to greater discussion and deliberation.”

The 2011 Select Committee on the Reform of the Australian Federation report likewise suggested the creation of a Joint Standing Committee on federalism in the national Parliament, including oversight of COAG. The report also championed increased transparency in meeting outcomes and giving states more power in agenda drafting and chairing.

The closure of the COAG Reform Council has led to a loss of accountability and transparency in intergovernmental relations, says Kildea, calling it a “real shame”. “It was doing terrific work in terms of tracking the performance of state governments against agreed outcomes in intergovernmental agreements,” he said.

The Reform Council, which reported to COAG rather than any individual government, closed on June 30 this year. Its reporting and accountability responsibilities have been assumed by the federal bureaucracy, arguably decreasing independence and further centralising control in the Commonwealth. (The Mandarin sought to clarify the new arrangements with the Prime Minister’s office but they didn’t respond to questions.)

Increasing transparency and accountability is vital to ensuring COAG aligns with democratic values, says Kildea.

“There is a difficulty with accountability with an executive meeting like COAG. If members of the public want to know who to blame or praise, it’s unclear where they should be directing attention. In part it’s inevitable that in a federation collaboration between governments is necessary — something like COAG does have to exist — but decisions announced by governments as policy without parliamentary input are an issue.”

More at The Mandarin: Mary Ann O’Loughlin on federalism, demands of public service