After COAG – Creating a Clear Pathway for Intergovernmental Decision Making – Possible Issues

The previous article introduced the Conran report[1] and identified some issues requiring further consideration. These are now discussed.

The National Federation Reform Council held on 11 December 2020 established the priorities of the National Cabinet Reform Committees (NCRC) for 2021:

As Conran says:

National Cabinet will stand up and task these NCRCs with high priority strategic reform projects as required. NCRCs will operate as committees of National Cabinet under the Federal Cabinet guiding principles and they will be task-oriented and time-limited, only working on specific, short-term and strategic reforms assigned by National Cabinet. NCRCs will disband when determined by National Cabinet.

Each of these NCRCs operate in a sector previously covered by a COAG Council or ministerial forum. A decision will need to be made whether an NCRC is all that is needed in a policy space, or due to the limited scope of the NCRC, an additional ministers’ meeting is required to manage ongoing regulatory or other responsibilities.[2]

With respect to continuing ministerial meetings or forums, Conran said:

In general terms, ministers should focus on two or three time-limited priority items at a time and should meet as often as required to progress those priority items. All other routine, technical or standing items should, where possible, be handled by correspondence without discussion or delegated to officials. Non-immediate priorities (i.e. those not in the top three) may be placed on the forward work program to be considered by ministers as the immediate priorities are dealt with and drop off the agenda. This should help to ensure that priority items are dealt with in a timely and efficient manner and should not remain on agendas for longer than 12 months.

In the case of long-term ongoing responsibilities or long-term strategic reform, these items may not lend themselves to being completed within 12 months. This work should be broken down into discrete, tangible deliverables that can appear on an agenda for implementation within 12 months and then drop off the agenda when completed.

In the case of ongoing regulatory work, this should largely be taken forward by officials. Where ministerial sign-off is required under legislation this should happen by exception, by correspondence……[3])

This seems to suggest a decision making cascade working along the lines of:

  • an NCRC focusing on the most important issues:
  • (perhaps) a ministerial meeting or forum focusing on two or three issues that could be dealt with over a 12 month period; and
  • a bucket of other issues that are minor or ‘technical’ that can be dealt with by way of circular correspondence or by officials

The interests of the NCRCs are very wide. For instance:

  • The Health NCRC is charged with ‘ensur(ing) reforms are consistent with the principles of ‘safety and quality, equity, sustainability and efficiency’; whilst
  • The Infrastructure and Transport NCRC is charged to ‘optimise National Freight productivity’.

One concern we have is that a culture is developed may develop in which particular policy issues fitting within a ‘theme’ may be subject to game of ‘snakes and ladders’ between Ministers sitting as an NCRC and the same Ministers sitting as a ‘Forum’ or ‘a meeting of Ministers’ should a particular issue become contentious.

The two different meetings have different rules. As Conran explains:

In order to streamline processes and reduce the bureaucracy and congestion associated with meetings, only CFFR and the NCRCs will report directly to National Cabinet. These bodies have been commissioned by National Cabinet and are established and operate under traditional Cabinet rules.

The remaining ministerial forums, which are the subject of this Review, are those which have traditionally reported to COAG on high profile projects or have operated as independent cross-government forums. They perform a variety of portfolio-specific regulatory and standard setting roles and pursue national policy development and collaboration. These meetings are intended to be established and operate (as currently applies) outside traditional Cabinet rules. Ongoing meetings that fall into this category will not report to National Cabinet, enabling line ministers to take ownership of their agendas, deal with issues, solve problems and move on.[4]

This is a possibility implicitly identified by Conran himself when he says:

Where an NCRC entirely overlaps with the work of a ministers’ meeting with the same membership, or where high priority NCRC matters require focused attention, ministers may choose to hibernate the corresponding ministers’ meeting until NCRC is disbanded.[5]

However important ministerial flexibility is, bureaucrats adopt different styles and approaches to stakeholders when they are dealing with an issue being dealt with outside of a Cabinet process and when something is in the Cabinet process.

In our experience, when something goes to a Cabinet subcommittee the free exchange of information and ideas is precluded because of ‘Cabinet-in-Confidence’ considerations.

This is something that can and should really be avoided.

Another concern is the effective incitement by Conran to push many matters for determination by circular resolution or to officials, such as for instance ‘ongoing regulatory work’.[6]

This consultancy is principally involved in the development of standards and legislation (regulatory instruments).

We are concerned that over time the culture could be developed so that standards or legislative development will become almost exclusively the province of the bureaucracy because of its inherent ‘technical’ nature, as Ministers focus on the ‘two or three’ higher level priority issues-with regulatory instruments requiring periodic amendment left to the bureaucracy to develop its own pace.

It is implied that business papers dealing with the two or three priority issues being considered in a ministerial meeting can be submitted without consensus being achieved between officers prior to the meeting.[7]

The report also said generally that decision making should be on the basis of consensus where possible, but that this shouldn’t prevent a matter being progressed by jurisdictions on a bilateral or multilateral basis.[8]

However, schemes of national uniform legislation[9] have been developed because of the need to have the same legislation in force in each participating jurisdiction-something which effectively requires consensus between jurisdictions participating in the legislative scheme.

We fear without the impetus of a ‘clock” the implicit need to find consensus will lead to the same committee type structure currently in force being re-created, with regulatory instruments proceeding through the process slowly.

Perhaps the biggest concern in Conran is the suggestion that:

…. Flexibility by, in certain cases, no longer requiring both a Consultation RIS (CRIS) and a Decision RIS (DRIS), where a final DRIS alone is sufficient to inform the decision-makers;

This would allow officials to propose to OBPR that, in certain cases, a draft RIS for consultation is not required, and that a final RIS is sufficient to inform the decision‑maker.[10]

It is our experience that the RIS process genuinely aids the development of better policy is stakeholders of all forms, with different knowledge to that held by government make their respective submissions the consideration of government.

They have made material differences to outcomes.

It would be a particular concern if the term ‘Final RIS’ as used in Conran[11] means as it does today: a document that is prepared in confidence and never seen by the outside world, with any input provided left to the sole discretion of those running the RIS process.

Possibility enhancements to the process are discussed in the final article of this series.


[2] Conran:19

[3] Conran:28-9

[4] Conran:22

[5] Conran:23

[6] Conran:29

[7] Conran Recommendation 23: 7

[8] Conran:17

[9] The types of which are explained here:

[10] Conran:32

[11] See for instance page 32

By | 2020-12-16T09:46:50+11:00 December 16th, 2020|COAG, Federalism, Governments, National Cabinet|0 Comments