Constitutional Incongruence: Explaining the Failure of the Council of the Australian Federation
| Author | Shipra Chordia,Andrew Lynch |
| Published date | 01 September 2015 |
| Date | 01 September 2015 |
| DOI | http://doi.org/10.22145/flr.43.3.1 |
| Subject Matter | Article |
CONSTITUTIONAL INCONGRUENCE: EXPLAINING THE
FAILURE OF THE COUNCIL OF THE AUSTRALIAN
FEDERATION
Shipra Chordia* and Andrew Lynch**
ABSTRACT
The establishment and rise of the Council of Australi an Governments (COAG) is, on
balance, a story of the successful development of a n executive-based institution f or co-
operative governance in the Australian federal system. By contrast, the Council of the
Australian Federation (CAF), created in 2006 as a forum for interstate co-operation and
policy development, has been far less effective. This article explores the reasons behind
CAF’s difficulties after a very short-lived initial impact. Integral to this account is the
significance of Canadian experience of horizontal intergovernmental relations, which
directly inspired the Australian Premiers to f ound CAF. The numerous indications of
political congruence — some temporary, others systemic — between the Canadian and
Australian settings obscured a deeper constitutional incongruence be tween the two
jurisdictions and this is fundame ntal to appreciating CAF’s failure as a transplant. CAF’s
ability to operate effectively as a sig nificant institution was inevitably constrained by the
parameters of the Australian federal system that its establishment was, in many ways,
seeking to transcend.
I INTRODUCTION
The creation of the Council of Australian Governments (COA G) in 1992 was a significant
development in Australian inte rgovernmental relations. COA G was not simply a
rebranding of the earlier practice of holding Premiers Conferences to finalise
Commonwealth allocations of funding, but instead was founded upon a conscious
commitment to ‘cooperative federalism’.1 Through this forum, the C ommonwealth and
* Director, Federalism Project, Gilbert + Tobin Centre of Public Law, Faculty of Law,
University of New South Wales.
** Professor, Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South
Wales. We thank Harkiran Narulla for research assistance in the preparation of this article
and Jennifer Menzies for her comments on an earlier draft.
1 For a full account of the dynamics and principles behind the establishment of COAG, see
Martin Painter, Collaborative Federalism: Economic Reform i n Australia in the 1990s (Cambridge
University Press, 1998). For a more recent overview, see Lynsey Blayden, ‘COAG’, (Briefing
Paper No 60/2013, Parliamentary Library, Parliament of NSW, 2013).
340 Federal Law Review Volume 43
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states, along with territory leaders, would seek to coordinate and harmonise
government activity in pursuit of shared national bene fits. While the reality of that ideal
has unsurprisingly waxed a nd waned as different governments have come and gone
over the last two decades, to the extent that an instituti on’s performance is measured in
its resilience then COAG has been a success. For although the Commonwealth’s
dominance of COAG, especially its grip on the basic procedural features of the
institution, has attracted ongoing dissatisfa ction and calls for reform, 2 it is difficult to
conceive of COAG being abandoned.3 It has, quite simply, become a secure piece of
Australia’s federal architecture.
It is very hard to make the same claims about the Council for the Australian
Federation (CAF), established more recently in 2006. CAF is the peak body of
subnational intergovernmental relations i n Australia, underpinned by an
intergovernmental compact between state Premier s and territory Chief Ministers in
which they agreed to meet at least once a year.4 At the time of its inauguration, its
founders ‘expressed a desire that the Council should act both as a forum for joint state
and territory action on matters of na tional significance, and a s a strategic body that can
help shape and set the na tional policy agenda’. 5 This was primarily to be achieved
through two of the five objectives articulated in the CAF agreement, namely that it
would operate:
• to complement the work of the Counc il of Australian Governments a nd
facilitate COAG‐based agreements with the Commonwealth by working
towards a common position a mong the states and territories, and;
• to reach, where appropriate, collaborative agreements on cross-jurisdictional
issues where a Commonwealth imprimatur is u nnecessary or has not been
forthcoming.
Both those objectives point to a role for CAF as a vehicle for horizontal cooperation.
Clearly, though, the first is about the formation of a united front in dealing with the
Commonwealth while the second is geared toward action taken independently of the
national government.
It has now been over eight ye ars since the inauguration of CAF and concerns over
the institution’s ongoing relevance and effectiveness have prompted some to ask
2 Paul Kildea and Andrew Lynch, ‘Entrenching “Cooperative Federalism”: Is it Time to
Formalise COAG’s Place in the Australian Federation?’ (2011) 39 Federal Law Review 103.
3 As recently as April 2013, the then President of the Business Council of Australia, Tony
Shepherd, called for the abolition of COAG: ‘COAG Should Be Scrapped: BCA’ The Australian
(22 April 2013). Shepherd’s stance was not reflected amongst the various recommendations
for the reform of the federation made by the Commission of Audit he chaired for the Abbott
government and which reported on 1 May 2014. The Commission did, however, recommend
the abolition of the COAG Reform Council, which reported on the progress made by
governments towards performance targets made under intergovernmental agreements:
Commonwealth of Australia, Towards Responsible Government: Phase One (Report of the
National Commission of Audit, February 2014).
4 Agreement to Establish the Council for the Australian Federation signed on 13 October 2006 by
New South Wales, Queensland, Victoria, South Australia, Tasmania, Western Australia, the
Northern Territory and the Australian Capital Territory.
5 Council for the Australian Federation, ‘CAF Communiqué’ (13 October 2006, Melbourne).
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