By Dr Jacob Deem

This piece features on The Machinery of Government blog

Responding to the challenges of the COVID-19 pandemic has prompted a new era of cooperation between Australia’s federal and state governments. But while the National Cabinet has provided a platform for governments to come together, it hasn’t all been smooth sailing, with conflict aplenty between the different levels.

A few weeks ago, the states were clashing with the Commonwealth over when schools should reopen. Things came to a head when federal Education Minister Dan Tehan declared Victoria’s refusal to reopen schools a ‘failure of leadership’. While he later withdrew the comment, it was just one of many salvoes launched in the war of words between federal and state governments over how best to deal with the COVID-19 pandemic. Now the fighting has shifted to debates over when state borders should reopen.

Of course, there’s nothing new about conflict between the levels of government. Take, for example, the battle between the federal and Tasmanian governments over the damming of the Franklin River from 1978–1983. More recently, then Energy Minister Josh Frydenberg and South Australian Premier Jay Weatherill duelled over South Australia’s renewable energy program.

Here’s an unpopular opinion: it’s ok when the state and federal governments argue.

I know this is an unpopular opinion because the Australian Constitutional Values Surveys have consistently recorded that only 20% of people think it’s desirable to have a system of government where ‘different governments argue over who should be responsible for a particular problem’. Australians’ resistance to conflict between governments is perfectly understandable when the conflict devolves into attacks and squabbling politics, as we saw on Sunday. It’s especially understandable in times like these, full of fear and uncertainty over the coronavirus outbreak. Parents just want a straight answer on when their kids can go back to school.

But hear me out. It’s the uncertainty that makes a little competition and conflict exactly what we need. We can do without the name-calling and mudslinging, but a genuine contest of ideas helps ensure that all the possible solutions are explored before a decision is made. So it’s ok when the state and federal governments fight when they do it the right way.

Our political system of a federalist democracy was designed with this very idea in mind; it is built to incorporate as many different perspectives as possible. Some of these avenues for debate have fallen by the wayside: opposition parties can raise issues with government policy, but the government rarely has to take those views into account. The Australian Senate, nominally a House of Review, now often finds itself a place of political bargaining where the crossbench of small parties and independents try to eke out deals that suit their agendas in return for supporting government policy.

Within the government itself, healthy debate is stifled for fear of leaks about ‘disunity’ that might damage the party, and the public service is no longer the bastion of ‘frank and fearless advice’ it once was. In this context, disputes between federal and state governments provide one of the few remaining avenues for thorough and constructive debates.

Of course, I’m not advocating that our leaders should butt heads at every turn. But nor should they relentlessly pursue consensus and agreement at all costs. Instead, we need a balance.

The issue over schools was a perfect example. It is still hard to know whether it’s safe to reopen schools — there are conflicting sets of medical advice within Australia and around the world. This means that there was a genuine debate to be had about the best course of action. The federal and state governments necessarily took different perspectives on the issue. Broadly, the federal government is responsible for the national economy, and saw reopening schools as a vital step to freeing up the workforce and rebooting the economy. State governments are generally responsible for health and education, and therefore have a different set of factors to consider: if cases spiked again, their hospitals would bear the brunt of the extra caseload, and they have a duty to ensure that teachers have a safe workplace. On top of that, states need to provide their students with the best learning outcomes possible, and so must balance that education with potential impacts on the community. All of these considerations are incredibly important and had to be balanced carefully. Thus, while the federal and some state governments do not see eye to eye on this issue, it’s not a question of who’s wrong and who’s right. Expecting consensus on this issue is unrealistic and undesirable.

The same applies to reopening state borders. Each state faces different factors in combating the pandemic, and therefore the response has to be different. It might even be that the best course of action is to open the borders in states with few cases, but to keep borders closed in the more populous states where there is a higher chance of a ‘second wave’ of cases. This divergence should be celebrated as a strength of our federal system’s ability to recognise when a one-size-fits-all approach is inappropriate, and constructive debate between the governments should be encouraged.

Unfortunately, on these issues — like so many others — we see useful debate descend into squabbling, political point-scoring and sensationalist rhetoric. So how do we ensure that our federal system delivers more constructive debate and less pointless bickering?

Providing an adequate forum for debate to occur is a good start. The Senate was originally intended as such a place, where states could make their voice heard on national issues, but that function has long since been eroded by party politics. The Council of Australian Governments (COAG) provides another space for leaders to debate, but its limited and infrequent meeting schedule makes it a difficult vehicle for driving constructive discussions. The National Cabinet, formed to meet the COVID-19 emergency, showed some initial promise. However, one of the conventions of a Westminster Cabinet is solidarity — within the Cabinet room, everyone is free to voice their opinion and disagree with one another, but once a decision is made, all members of Cabinet are expected to publicly support the decision. This convention makes sense when dealing with one government, but it falls apart in a federal setting where the different jurisdictions can disagree and have the right to govern their own people. Our system is meant to accommodate diverse views and different approaches for different states, so imposing notions of Cabinet solidarity on top of federalist structures was always going to be a challenge. Accordingly, we need to reform, revitalise or completely reimagine our federal institutions so that they promote healthy debate in an appropriate setting instead of politicians trading blows through media soundbites.

On top of that, there are things we can do as citizens. We can do more to inform ourselves about how the federal system works, so that we can view disagreement between governments as a sign of a healthy federation, rather than as a flawed design feature. Staying informed will also help us recognise occasions when divergences between the states are desirable, rather than always demanding national consensus and uniformity. And we can refuse to buy into the war of words politicians seem determined to inflict on our television screens, newspapers and social media feeds. As a country, we need to be mature enough to expect constructive conflict between our leaders in the interests of a better final decision. Australia is a very big place after all, and if we can celebrate the mosaic of different views and perspectives we all offer, even in a time of crisis, then we will be stronger for it.

About the Author

JACOB DEEM

Dr Jacob Deem is a Lecturer at CQUniversity’s Law School. He specialises in public law research, focusing particularly on federalism, constitutional law and the principle of subsidiarity. His published works on these topics include lead authorship of ‘Subsidiarity in the Australian Public Service’ (in Australian Journal of Public Administration) and ‘Beyond the Canberra Bubble’ (in From Turnbull to Morrison), and co-authorship of ‘A Tale of Two Regionalisms’ (in Regional Studies). He has also contributed chapters on placemaking, local governance and Constitutional reform to volumes such as the Oxford Handbook of Australian Politics (Oxford University Press, forthcoming) and A People’s Federation (Federation Press, 2017). His PhD Thesis ‘Subsidiarity’s Quest for Meaning’ uncovered vibrant subsidiarity political cultures in Australia, Canada, Germany and the United Kingdom.

Jacob teaches Administrative Law and Principles of Commercial Law at CQUniversity, and has previously taught courses in Constitutional Law, Australian Politics, Political Leadership, and the Mechanics of Power at Griffith University. Jacob is an Adjunct in the Centre for Governance and Public Policy at Griffith University.

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