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COAG, DEMOCRACY and the AUSTRALIAN CONSTITUTION: YOU CAN CHOOSE TWO by MARK BRUERTON

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COAG, DEMOCRACY and the AUSTRALIAN CONSTITUTION: YOU CAN CHOOSE TWO by MARK BRUERTON COAG, DEMOCRACY AND THE AUSTRALIAN CONSTITUTION: YOU CAN CHOOSE TWO by MARK BRUERTON Adelaide Law School January 2016 1 CONTENTS ABSTRACT………………………………………………………………………………………………………………………………………… 3 ACKNOWLEDGEMENTS.......................................................................................................................... 4 DECLARATION………………………………………………………………………………………………………………………………….. 5 INTRODUCTION...................................................................................................................................... 6 CHAPTER I: COAG AND ITS ‘DEMOCRATIC DEFICIT’............................................................................. 11 CHAPTER II: WHAT DO WE KNOW ABOUT COAG?.............................................................................. 24 CHAPTER III: WHAT MAKES A CONSTITUTIONAL CONVENTION?........................................................ 55 CHAPTER IV: COAG AS A CONSTITUTIONAL CONVENTION.................................................................. 73 CHAPTER V: COAG AND RESPONSIBLE GOVERNMENT, THE CLASH OF CONVENTIONS...................... 93 CONCLUSION..................................................................................................................................... 116 BIBLIOGRAPHY................................................................................................................................... 122 2 ABSTRACT A ‘democratic deficit’ has been well identified in the operations of the Council of Australian Governments (COAG). This has previously been identified as a primarily political problem. However, perhaps there is more to the story. If COAG is fulfilling a constitutional role as well as a political role, the consequences of its democratic deficit could be far more wide-reaching, threatening the democratic integrity of the constitutional system. In order to determine whether this is the case, this thesis will do two things. First, it will establish whether COAG is a constitutional convention. If this is the case, COAG will be fulfilling a constitutional role and should be considered part of the constitutional framework. Second, this thesis will extrapolate what the consequences of the democratic deficit would be if COAG was a constitutional institution rather than a political one. Answers to these questions will be crucial in developing our system of government to accommodate both democracy and federalism. To do nothing would see democracy further sacrificed in the face of federalism. 3 ACKNOWLEGEMENTS The idea for this thesis began in 2007 and since that time, the idea that there may be a constitutional clash between two critical parts of the Constitution has grown into the work presented here. Special thanks in this effort go to my two supervisors, Professor John Williams and Associate Professor Alex Reilly. Both of your knowledge, experience, frank and fearless advice have been critical in turning an idea into the thesis it now is. I couldn’t have done it without you. Thanks also go to my external supervisor, employer, mentor and friend, Professor A.J Brown. Without your advice, patience, passion and knowledge of federalism this thesis would never have been. I would like to thank the Honourable Justice Tom Gray, the family of the late Doctor Howard Zelling AO CBE and the Faculty of the Professions at the University of Adelaide. The support of their scholarship programs is greatly appreciated. Finally, thanks go to my contemporaries in the Adelaide Law School PhD program: Gabrielle Appleby, Mark Giancaspro, Samaneh Hassanli, Adam Webster, Heath Evans, Renae Leverenz, Anna Olijnyk and Vanessa White. A supportive environment is crucial to the completion of a PhD and with all of you I couldn’t have asked for better colleagues. 4 DECLARATION I certify that this work contains no material which has been accepted for the award of any other degree or diploma in my name, in any university or other tertiary institution and, to the best of my knowledge and belief, contains no material previously published or written by another person, except where due reference has been made in the text. In addition, I certify that no part of this work will, in the future, be used in a submission in my name, for any other degree or diploma in any university or other tertiary institution without the prior approval of the University of Adelaide and where applicable, any partner institution responsible for the joint-award of this degree. I give consent to this copy of my thesis, when deposited in the University Library, being made available for loan and photocopying, subject to the provisions of the Copyright Act 1968. I also give permission for the digital version of my thesis to be made available on the web, via the University’s digital research repository, the Library Search and also through web search engines, unless permission has been granted by the University to restrict access for a period of time. Mark Bruerton Brisbane, January 2016 5 INTRODUCTION A ‘democratic deficit’ occurs where the operations of an institution of government is undermining proper democratic practice. Such a deficit has been well identified in the operations of the Council of Australian Goverments (COAG).1 To date, this has been identified as a primarily political problem. However, perhaps there is more to the story. If COAG is fulfilling a constitutional role, as well as a political role, the consequences of its democratic deficit could be far more wide reaching, compromising the democratic integrity of the constitutional system. Democracy is one of the most cherished Australian values. For 144 years all Australian Parliaments have had at least one elected house. Yet it is possible that our system of government is not as democratic as we would like to believe. Perhaps other values, like federalism, are undermining democracy. In October 2005, an event occurred which exposed a fundamental clash of values within the Australian Constitution. It began with a Council of Australian Governments (COAG) meeting in the previous month, ordinary in almost every way. The leaders of the States and Territories arrived in Canberra to meet with the Prime Minister to discuss a matter of cross-jurisdictional importance. In that case, that matter was a proposed array of anti-terror laws. As with every other the COAG meeting, the leaders met in private and, ultimately, a communiqué on the results of the meeting was released outlining actions to be taken as a result of the meeting.2 At this point events took an unexpected turn. One of the members of the meeting, the Chief Minister of the Australian Capital Territory (ACT) Jon Stanhope, began expressing concerns that far reaching decisions were being made at COAG without public debate. In particular he criticised the Prime Minister John Howard for expecting the State and Territory leaders to agree to the Commonwealth’s terrorism proposals before consulting the opinions of the public in their jurisdictions. Stanhope said: I find it simply unacceptable for anybody to suggest that I should put my signature on this draft bill, send it back to the prime minister and say 'yes, prime minister, I agree to this bill, I haven't consulted with the people of the ACT ... but I'm prepared to sign off on it' … Now that's just an extraordinary suggestion and it's clear to me that the prime minister doesn't want debate, he doesn't want to have to respond to the critics, he doesn't want to have to explain some of the detail.3 In support of his views, Mr Stanhope then released a draft copy of the Prime Minister’s proposed anti-terror laws onto the ACT government website. The Prime Minister was not impressed. He said ‘It's important that governments, no matter what political stances you might take, should have the 1 See for example Roger Wilkins, ‘A New Era in Commonwealth-State Relations?’ (2006) 7 Public Administration Today 8; Paul Kildea and Andrew Lynch, ‘Entrenching ‘Cooperative Federalism’: Is It Time to Formalise COAG’s Place in the Australian Federation?’ (2011) 39 Federal Law Review 103; Marian Sawer, Norman Abjorensen and Phil Larkin, Australia: The State of Democracy (The Federation Press, 2009) 304-5. 2 Council of Australian Governments, ‘Communiqué’ (Council of Australian Governments Special Meeting on Counter-Terrorism, Canberra, 27 September 2005) http://archive.coag.gov.au/coag_meeting_outcomes/2005-09-27/docs/coag270905.pdf. 3 Jon Stanhope in AAP, ‘Stanhope questions ‘hasty’ terror laws,’ The Age (online), 17 October 2005 <http://www.theage.com.au/news/national/stanhope-questions-hasty-terror laws/2005/10/17/1129401166356.html>. 6 capacity to talk to each other in confidence. And that legislation was given in confidence.’4 This exchange brought to light a conflict between the necessity for confidential negotiations around intergovernmental issues and the values of representative democracy. Confidential intergovernmental negotiations through COAG necessarily preclude public and parliamentary scrutiny, a phenomenon known in the literature as COAG’s ‘democratic deficit’.5 My thesis will investigate this conflict and establish how it may manifest within the Australian Constitution as a clash of constitutional conventions. Australia’s system of governance has at its core a marriage between federalism and parliamentary democracy. Yet rather than being a happy marriage upon which a strong constitutional system stands, this is a union in constant tension. This tension was identified during the constitutional drafting process when Winthrop Hackett remarked that
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