Is COAG suited to cooperative federalism? How would we measure that? Adelaide Law School PhD candidate Mark Bruerton considers these questions.
The 24th of July bore witness once again to a governance ritual as old as the Australian nation itself. State and territory leaders met with the Prime Minister for a Council of Australian Government (COAG) meeting and, as per the ritual, the state and territory leaders left complaining of Commonwealth tight-fistedness and the Commonwealth left complaining of state intransigence. This is the most common face of federal relations in Australia and yet, every three to six months, the leaders come together to do it all again. Witnessing this seemingly masochistic behaviour raises the question as to whether COAG is even suited to facilitate a cooperative intergovernmental relations effort.
In an effort to discover this, I undertook to examine reporting of COAG meetings and their predecessor first ministers’ conferences. Early results of this study were presented to the Gilbert + Tobin Centre’s 2012 Postgraduate Conference at the University of New South Wales on 12 July.
Why do we need COAG?
The drafters of the Australian Constitution established a federal system which divides sovereign policy power between the parliaments of two levels of government: the Commonwealth and the states. Regardless of whether the constitutional framers intended for powers to remain divided between the jurisdictions or intended powers to operate concurrently, overlap in areas of policy responsibilities between both levels of government has developed over time.
The States have been slowly losing independent revenue sources and the Commonwealth has required state (and territory) cooperation in order to implement their nation-wide policy priorities in line with the expectations of the electorate. This has necessitated a high level of interaction and cooperation between both the Commonwealth and the state/territory levels of government. Despite this, the Australian constitution is silent on an institutional mechanism to facilitate this cooperation. So how has cooperation been facilitated?
Recognising the necessity for intergovernmental cooperation even before the federation was established, the leaders of the colonies and, later, the leaders of the states, territories and the Commonwealth, begun to meet in conference to discuss policy issues requiring cooperation and, ultimately, to reach agreement on their response. While there is no doubting their importance or their necessity, the question is whether the conference, as an institution, is well-suited to the task of facilitating cooperative federalism?
In order to adequately facilitate cooperative federalism, first ministers’ conferences require membership across all the jurisdictions who are required to be party to an agreement which is fully actionable. In this case, that necessitates both the Commonwealth and the states/territories to be represented.
A simple study of the membership profile of the conferences indicates that this is the case. At their inception in the 19th century, first ministers’ conferences were attended by colonial leaders (they being the only leaders necessary to be in agreement at that time) while following federation, the conferences were consistently attended by both state and Commonwealth leaders where necessary. Today, COAG meetings are attended by the Prime Minister, the state premiers, the mainland territory chief ministers and the President of the Australian Local Government Association (present as a non-voting member). This shows that first ministers’ conferences have not only had the required membership at one time in their history, they have been able to flexibly change their membership profile in line with era-specific requirements. Such a characteristic is critical for an institution to remain central to cooperative federalism over time.
Beyond simply being members of the conference, it is necessary for the members to prioritise attendance at these conferences for them to be even capable to successfully facilitate a cooperative federalism program. To determine whether there was such a level of priority recognition of the importance of the conferences on behalf of the members, I correlated attendance data for each jurisdiction and compared them to one another.
The results of that comparison showed 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. Furthermore, where a leader could not attend, the study indicated the leaders were inclined to send a representative rather than allow the jurisdiction to go completely unrepresented. The highest rate of complete non-representation of any jurisdiction at conferences was 4% over the entire history of the conferences. Furthermore, representation was not significantly different between the levels of government. Both the average attendance of the Commonwealth and the states/territories was over 90% and complete non-attendance was, on average, at or below 2%. This indicates a high level of inclination to attend the conferences, evidence of priority recognition on behalf of the members.
For the conferences to be a permanent facilatory body for cooperative federalism, it requires commitment from both parties which form government in Australia, the Australian Labor Party (ALP or ‘Labor’) and their non-labor rivals (currently the coalition between the Liberal Party of Australia and the National Party of Australia). In order to establish whether there was any partisan bias in commitment to the conferences, I looked at the annual rate of attendance of each leader at the conferences and divided them by partisan affiliation. While attendance alone would not measure full engagement and commitment to the cooperative federalism process, it does indicate an acceptance of the importance of the process and the need for representation at the conferences, whether ideologically engaged or not.
With regard to the Commonwealth partisan profile at conferences, I looked at the top 10 attendees (by annual rate of attendance) and also the average annual rate of attendance of both parties across the history of the conferences. This study showed a slight statistical bias in attendance towards the ALP but a general bi-partisan theme.
The overall Commonwealth average of the annual rate of attendance from both parties was between one and two conferences a year while amongst the top 10 attendees, five were Labor and five were non-labor. There was, however, a cluster of Labor leaders at the upper end of the set and a cluster of non-labor leaders at the lower end of the high-attendance group. Despite this, all leaders but two in that set had attended the conferences at a rate of between one and two conferences per year. The only leaders in the top 10 data set, Kevin Rudd and James Scullin, represented aberrant figures (attending close to four and three conferences per year respectively). This showed a small statistical bias towards Labor in terms of attendance at conferences but, in practice, since both parties attend an average of one and two conferences a year, the conferences enjoy a general level of bi-partisan recognition.
In the case of the states, figures confirmed this generally bi-partisan theme. Average attendance between the parties amongst the states and territories generally laid in the one and two conference a year range. Only Tasmania and the Northern Territory had Labor figures above this range and non-labor figures below this range and, in the case of the Northern Territory, this can be put down to the dominance the ALP in government during the time the Northern Territory has been attending conferences on a regular basis. There were also two jurisdictions (Queensland and Western Australia) which had non-labor attendance rates above those of Labor attendance rates. All this resulted in a total average rate of attendance for both parties within the one and two conferences a year range. This confirmed a general bi-partisan acceptance, if not necessarily enthusiasm for first ministers’ conferences.
A well-suited institution?
Coverage of first ministers’ reveals that the conferences (including COAG) have a comprehensive membership, a high level of priority recognition and bi-partisan support. What this means is that COAG, while often facilitating negotiation in a conflicted environment, is well-suited to facilitate agreements which can overcome the constitutional limitations to ideal governance outcomes that overlap jurisdictions.
As such, while the environment surrounding COAG meetings may be tense and conflicted, it is still the only mechanism available to facilitate cooperative federalism effectively. While leaders may not enjoy such encounters (and we may not enjoy watching them), unless a better institution can be created, every three to six months the ritual will need to continue.
 See for example Alan Fenna, ‘The Malaise of Federalism: Comparative Reflections on Commonwealth-State Relations’ (2007) 66(3) The Australian Journal of Public Administration 298.
 See for example Brian Galligan, A Federal Republic (Cambridge University Press, 1st ed, 1995).
Mark Bruerton is a PhD candidate at the Adelaide Law School.