Forget What We Said Earlier: COAG, Still the Fourth Tier of Government

We have previously noted that some people such as WA Premier Colin Barnett have suggested that COAG is becoming another tier of government.

The content of the COAG communiqué of 13 February 2011 suggests the tendency is continuing.

The main event was the signing of the Heads of Agreement on National Health Reform

However, other matters were dealt with.

A National Vocational Education and Training Regulator is to be established to ‘drive better quality standards and regulation across the Australian VET sector'.

This new body will join the Australian Health Practitioners Regulatory Agency, the National Occupational Licensing Authority and the Australian Curriculum Assessment and Reporting Authority as brand new national bodies to drive and determine a single set of national standards.

Another decision was to speed up the Seamless National Economy from June 2013 to December 2012, with options to be developed for a further wave of regulatory and competition reforms.

This will undoubtedly lead to the development of more national regulation.

However, the most interesting development was the establishment of Standing Councils to operate under COAG, designed to:

undertake legislative and governance functions relevant to their scope, and provide an annual report to COAG which includes an overview of the decisions made by the Council. (our emphasis)

The idea is to:

….(provide) a clear role for Ministers from all jurisdictions to support COAG in tackling 21st century policy challenges. There will be sustained collaborative effort on the long-term reform agenda while allowing for the flexibility needed to address more urgent challenges.

However, this classic ‘executive federalism’ model of governance suffers from one significant deficiency – ‘democratic deficit’.

The somewhat murky structure of the proposed new ministerial council process makes it difficult to see how anyone interested in a policy matter (other than larger players with the capacity to maintain a Canberra presence) will have the capacity to adequately participate in the regulation development process.

More particularly, once a COAG Council has ‘undertaken a legislative function’ (which presumably means approving a draft national law to be passed by (usually) state parliaments) one fears the opportunity to amend what could be a bad law will be limited because as COAG (or, in this case, a National Council of COAG) said a law has to pass, and so it will.

We harbour sincere doubts that this manner of rule making will necessarily lead to better laws.

However, one thing illustrated by the COAG communiqué is that even though Council membership may no longer be wall to wall Labor, the introduction of non-Labor members has not changed the function of COAG as another tier of government determining the rules of the Australian federation without any parliamentary oversight.

Plus ca change, plus c'est la meme chose.