By Tracy Beck Fenwick
A version of this article was originally published by The Canberra Times.
Executive federalism is a significant feature of how former prime minister Scott Morrison and the premiers of the states and territories responded to the 2020-2021 COVID-19 pandemic in Australia.
Executive federalism refers to processes of intergovernmental negotiations that are dominated by the executives of the different governments within a federal system, it is also a significant feature of parliamentary federations elsewhere.
Former prime minister Scott Morrison has defended his portfolio power grab by justifying first, the nature of the policy problems he had to solve during the pandemic-actions that required fast, precise actions, in a space of limited time. And second, based on his belief the public, the media, and the opposition expected that he as prime minister "was responsible for everything going on - an expectation that the prime minister had the authority to override the states, which is simply not the case".
Arising out of the 2019 bushfires when the public, media, and opposition felt that the former prime minister's leadership to steer that national crisis had failed, during the latest pandemic or tempest as he called it, Mr Morrison felt an obligation to demonstrate federal leadership. The reactions to the former prime's minister defence of his secret ministerial appointments and the impending questions circulating fail to fully understand the tensions created by combining parliamentary and federal institutions. Mr Morrison explained that to be personally responsible for everything going on, he created the national cabinet as a mechanism to bring attention to the fact that the Commonwealth had no power over the states in terms of steering the federation's pandemic responses.
The Australian national cabinet is a classic example of an institution of executive federalism where only executives negotiate decisions without the participation of their respective parliaments. It has long been criticised by federal scholars as creating an undemocratic dynamic where critical decisions are made behind closed doors, by an elite group of mainly male actors (the PM, premiers, and chief ministers). Moreover, the national cabinet which Morrison recently highlighted "met 57 times under his direction" was also highly criticised by the public, the opposition, and the media for being highly secretive. According to The Guardian's Paul Karp, "national cabinet is so secretive that its documents are confidential to the government that created them- meaning the Albanese government has not had access to Morrison-era records".
Is the national cabinet therefore, according to the solicitor-general's recent statements about Mr Morrison's secrecy, likewise inconsistent with the principles and conventions of responsible government? executive federalism mechanisms like the national cabinet are meant to combine a British inheritance with an American model, each based on fundamentally different premises that are contradictory to each other.
One is based on the idea of fused executive and legislative power, the other on dispersed decision-making centres where power is divided, and no single actor can dominate.
Critics of executive federalism are right to point out that mechanisms like the national cabinet are characterised by diminishing the role of Parliament in governing the nation and elevating the influence of premiers and territory leaders over national public policy.
This is the same logic Mr Morrison used to defend the secrecy surrounding his portfolio self-appointments. If the prime minister did not have the authority to override the states' power to manage the pandemic, did he not also need a mechanism to centralise his authority to directly negotiate with the states and territory leaders in those 57 critical decision-making meetings? Meetings, which did not include ministers and department secretaries? Given the fact the Biosecurity Act gave the sitting health minister unilateral powers to override all Australian laws, did not give Mr Morrison de jure power to negotiate within the national cabinet all whose members surely knew that they were negotiating with a lame duck because of established Australian parliamentary traditions?
Unilateral executive actions in a federal system are however the product of the increasing interdependence of governments within a federation, and their increasing inability to fulfill their responsibilities and respond to emergency crises in isolation from each other.
It will be interesting to see if this institution as an intergovernmental mechanism of coordination created during the pandemic is maintained by Anthony Albanese even though it is also not accountable to parliament and undermines the principles of responsible government.
Tracy Beck Fenwick is the director of the ANU's Australian Centre for Federalism and an associate professor of political science.