Australians are well accustomed to the often infantile politicking that goes on between the Commonwealth and the States, particularly when it involves governments of different political persuasions. In this post, Dr Gabrielle Appleby considers an incident in Queensland last week where the Queensland Liberal-National Government refused to allow federal Labor Education Minister Peter Garrett access to State schools to talk about the Gonski reforms. What appears on its face to be a harmless political stunt raises important questions about Commonwealth-State relations and the extent of their constitutional immunities.
Last week, the Queensland government banned the federal Education Minister Peter Garrett from talking about the Gonski education reforms at two Queensland public schools. Mr Garrett claims the move was unprecedented, but the Queensland Education Minister John-Paul Langbroek claims that the State was acting in accordance with long-standing practice that prohibits politicking in schools.
The incident has shone a different light on the tensions and confrontations between the States and the Commonwealth over the Commonwealth’s attempts to ram into place its school funding reforms before the federal election. The Commonwealth has no direct legislative power over education and as such has resorted to coaxing, cajoling and threatening the States to get them to sign up. This in itself is an interesting spectacle and an opportunity to examine cooperative federalism at work.
The Queensland incident, however, highlights a very different federal question. Can States prevent Commonwealth Ministers from attending at State owned and operated schools? Certainly if the States are considered to have the same legal rights and powers as an individual, they could. I can deny Mr Garrett entry into my house regardless of why he wants to be there. Of course the Commonwealth could pass legislation requiring me to allow him entry, but in the absence of that my property rights would trump.
But the States are different. The States are part of a federal compact enshrined in and enforced by the Constitution. The High Court has held that there is a limited immunity between the two levels of government, although the Commonwealth receives a wider immunity than the States in recognition of its superior status in the Constitution itself. The relevant constitutional test is that the States can’t affect the Commonwealth’s capacities – such as the capacity to contract, or to sell land, or to run a business – but it can regulate their exercise – so it could require certain contracts to be in writing, or regulate the operation of certain business activities.
The test itself is often difficult to apply – when is the regulation of the exercise of a capacity so substantial that the capacity is in fact affected? Is the banning of political campaigning from schools the regulation of the capacities of Commonwealth Ministers, or does it amount to affecting their capacities? What are the ‘capacities’ of the Commonwealth and would campaigning, or explaining Commonwealth policies, be within these protected capacities?
Mr Garrett has claimed that he was not, in fact, campaigning but performing part of his job in explaining the proposed federal reforms to school communities. Schools in Australia are partly funded by the Commonwealth government (via the States) and it is through funding that the Commonwealth is able to achieve its policy objectives in this arena. The Gonski reforms are not yet cemented in Queensland as the State hasn’t yet agreed to implement them in return for federal funding. Even if Mr Garrett’s explanation of his visit is correct, I still see a couple of issues that may preclude such a function from constitutional protection.
I’m not sure that explaining proposed policies is a constitutionally protected ‘capacity’ of the Commonwealth. When the Commonwealth’s immunity from State actions was originally conceived the High Court was concerned about the effect of State laws on historical prerogative powers and powers that defined the Commonwealth’s relationship with its citizens. I can’t see how explaining proposed policies would fall within such powers.
This then raises a question about whether the Education Minister would be constitutionally protected if he was visiting schools to speak to them about NAPLAN testing or the MySchool website, both current Commonwealth initiatives. I am still unconvinced that the Minister would be protected. The Commonwealth’s interests in these issues arise not because it has directly legislated, but because the Commonwealth has been able to implement policies outside its legislative powers through tied grants schemes.
Education is not within the defined constitutional power of the Commonwealth. Sure, the Commonwealth has an Education Minister and Department and the Commonwealth can implement education policy by relying on the cooperation of the States, funding schemes and some peripheral legislation powers it does have (such as the power to provide benefits to students). But education is not within the core responsibility of the Commonwealth and therefore outside its ordinary business and constitutional obligations.
It is helpful to contrast Mr Garrett’s position with that of anti-war activists who sought to ban or limit the presence of defence force recruiters in public schools and university campuses in the United States during the Iraq War. Could the States place a restriction on defence recruiting in public schools? I highly doubt it. It seems to me this would be the type of Commonwealth capacity that the Constitution protects from State interference. The Commonwealth has, in effect, a constitutionally exclusive power over the defence of the Commonwealth. Recruiting personnel, even in schools, could be seen as a necessary part of exercising this power.
A further question arises from this conclusion – would the capacities include the inspection by a Commonwealth official (such as a Minister) of the use of money that has been distributed by the Commonwealth through the States using tied grants. The Commonwealth has the express power to make grants to the States ‘on such terms and conditions as the Parliament thinks fit’. It would be arguable that a necessary part of exercising this power is the inspection of the programs which it has funded through such grants. If correct, this would significantly widen the protection afforded to the Commonwealth against State actions.
The Queensland incident demonstrates how important it is to remember that both the State and federal governments in Australia form part of a larger whole. For the federation to work, the States can’t tell the Commonwealth that it can’t do its job. Equally, if the Commonwealth strays outside of its job, it must lose the protection of the compact.
Dr Gabrielle Appleby is a Senior Lecturer at the Adelaide Law School, University of Adelaide.