Australia has what is known as a ‘executive federalism’ system of government.
As Brian Galligan has said:
Federalism that divides government between separate spheres, especially when such division is heavily concurrent as in the Australian case, requires extensive inter-governmental relations and arrangements. The resultant system of ‘executive federalism’ entails dealings between the Commonwealth and State Government in ministerial councils and agreements that are beyond parliamentary scrutiny and responsibility.[1]
and as Kildea and Lynch said:
An ongoing concern about COAG is the extent to which its operation is consistent with basic democratic principles. As Director-General of the Cabinet Office in New South Wales in 2006, Roger Wilkins, now Secretary of the Commonwealth Attorney-General’s Department, remarked in 2006 that COAG ‘sidesteps, more or less completely, any sort of democratic scrutiny.’[2]
As we indicated in the first article of this series, we generally agree with the idea that decision making should be made quicker but without undue overlays of bureaucracy and that there should be flexibility in the decision-making process.
However, the ’democracy deficit’ inherent in the COAG process can’t be ignored. There is a danger that the Conran prescriptions could exacerbate it.
Here are a few ideas that will assist.
Clear identification of who is doing what and when
As we discussed in our earlier article, there is a clear need for identification as to how decisions are to be made in respect of particular policy issues.
Knowing who is doing what and when- particularly if decisions are to be made quickly- will assist external stakeholders in participating in the process so quality policies and legislative instruments can be developed.
In our view, identifying priorities for National Cabinet Reform Committees (NCRC) in terms such as ‘ensuring reforms are consistent with the principles of safety and quality (etc.)’ or ‘optimising national freight productivity’ are not particularly helpful.
Most policy issues move at a relatively slow pace.
Few areas usually require decisions made in a dramatic fashion-issues such as national bushfires and pandemics are happily rare, and you can otherwise pretty much identify a crisis when you’re in one.
(National security considerations are a special category outside the ambit of this discussion.)
The reform priorities to be dealt with by a National Cabinet Subcommittee should in future be identified with greater specificity than those ‘themes’ published after the 2020 National Federation Reform Council meeting.
Conran suggests that the work programs of ministers meetings should wherever possible be published,[3] with those programs only dealing with and resolving national strategic priorities.[4]
However, we propose even greater transparency.
We would suggest that a website similar to the www.coag.gov.au be created identifying the bodies that have been established underneath National Cabinet; and then sets out the issues before each:
- NCRC;
- ministerial meeting or forum (however described); and
- group of officials working to a ministerial meeting
and the timeframe within which a decision is expected.
This is to remove any doubt that any ‘ongoing regulatory work’ being taken forward by officials is under the same sort of ‘clock ’that Ministerial Committees – that generally speaking, tasks should be completed within a 12 month period.
Amendments to regulatory instruments made under ‘applied’ or ‘mirror’ legislation
As indicated in a table prepared by Australia’s Parliamentary Counsels Committee[5], many areas of public policy apply a scheme of national uniform legislation to provide national consistency in legislation.
In many circumstances Ministerial Councils are vested with responsibility to make important decisions.
For instance the Health Practitioner Regulation National Law invests in the relevant ministerial Council responsibilities including the registration standards that practitioners must meet.[6]
It is important that legislation of this nature process through what is now the National Cabinet process is appropriately considered.
This is because the experience of this consultancy is that once something had gone through the previous COAG process, it was next to impossible to have corrected poorly drafted legislation presented to the ‘host’ Parliament[7] .
Notwithstanding the notional sovereignty possessed by the relevant Parliament, invariably one is told that the decision is a ‘COAG decision’ and so there was little incentive to closely scrutinise legislation, let alone make remedial amendments. Parliaments are quite happy to act as mere agents for the COAG/National Cabinet process and not exercise any of their inherent powers to amend legislation presented to it.
The Conran recommendation that as a general rule ministers’ forums and meetings should not have their regulatory and standard-setting roles enshrined in legislation[8] is acknowledged but not supported.
We are of the view that when it comes to making legislation that affects the rights and obligations of citizens and in many circumstances impose significant costs on industry, it is important that the apex of the National Cabinet process[9] be recognised in legislation as being the ultimate decision maker.
Given the difficulty in seeking any amendment to legislation made pursuant to a national scheme at the Parliamentary stage, it is only appropriate that the law specifies that regulatory instruments are signed off by a group of elected people.
This is so relevant stakeholders can make one final address seeking the possible amendment to proposed legislation that is considered to be unsatisfactory by the stakeholder.
We do not believe it is right that a practice and culture suggesting that ‘ongoing regulatory work’ is something that should happen ‘by exception, by correspondence’[10] be established.
Amendments to regulatory instruments prepared to facilitate a scheme of national uniform Legislation should be formally placed on the agenda of any relevant ministerial Council meeting for discussion and resolution.
Consultation Regulation Impact Statements
Finally, as discussed in our earlier article, Conran suggested that in some circumstances Consultation RISs may not be needed.[11]
He went on to say:
Changes to streamline decision making does bring some risks
Affected stakeholders in business and the broader community have high expectations for quality RIA. In part, this is due to the well-established nature of the COAG RIA settings, and the ability for all stakeholders to review and contribute to CRISs to ensure the advice to decision makers is as fully informed as possible.
While the previous COAG RIA requirements are relatively inflexible, any streamlining could be perceived as a reduction in commitment to rigorous impact analysis and evidence‑based decision making.
Of all the proposed changes, the most sensitive with stakeholders is likely to be the removal of mandatory CRISs. CRISs are seen by many as a critical way to build trust in decision making processes, improve the analysis supporting major decisions and a clear and transparent way for business/community advice to be incorporated and provided to decision makers.[12] (emphasis added).
Conran is correct about this.
Governments simply do not have all the information necessary to make quality regulatory instruments or policy decisions.
For all its faults the RIS system is possibly the best way to ensure that relevant information can be collected and considered by decision makers, whilst giving stakeholders confidence that poor options can be weeded out.
This is something particularly important given the observations made earlier that for all intents and purposes it is too late to change legislation that has been presented to a parliament that has been ‘ticked off’ by a national process.
The Consultation RIS process should remain a part of the national regulation development process. Consideration should be given to publishing Decision RISs prior to final consideration by a relevant meeting of national ministers.
Conclusion
The streamlined administrative structure proposed by Conran reforms should improve responsiveness in decision making. However, it is important that the urge for flexibility does not preclude the capacity of stakeholders to be able to contribute to the policy development process.
This is particularly the case in relation to the development of regulatory instruments that establish rights and obligations on people and businesses.
[1] Department of the Parliamentary Library Research Paper Number 26 2000-01 Parliament’s Development of Federalism: https://www.aph.gov.au/binaries/library/pubs/rp/2000-01/01rp26.pdf: 10
[2] Entrenching ‘Cooperative Federalism’-Is It Time To Formalise COAG’s Place In The Australian Federation http://classic.austlii.edu.au/au/journals/FedLawRw/2011/4.pdf:116
[3] Conran page 18
[4] Conran page 27
[5] https://www.pcc.gov.au/uniform/National%20Uniform%20Legislation%20table%20-%202020%20final.pdf
[6] Part 2
[7] For instance, for both the health professional registration and heavy vehicle national schemes, the host parliament is Queensland.
[8] Recommendation 29: 8
[9] Some form of drafting protocol will need to be developed to identify the meeting of Ministers with responsibility for the maintenance of a scheme of national uniform legislation given the clear implication the labels and/or structures of relevant committees will vary from time to time.
[10] Conran:29
[11] Conran:32
[12] Page 32