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Public Sector Informant : PSI - September
THE PUBLIC SECTOR INFORMANT 17 BER 2010] :BRYAN P APE] akes control of the executive the functions On watch: Barrister and law lecturer Bryan Pape challenged the validity of the federal stimulus package in the High Court last year. and Jobs Plan, agreed to by the Council of Australian Governments in February 2009. Intergovernmental agreements and national partnership agreements are political agreements. They are unenforceable domestic treaties made between the states' executives and the federal executive. They are not laws of any state, territory or of the Common- wealth. Is the BER national partnership agreement within the power of the Commonwealth executive to make? As there is no legislative power under the Constitution to make laws with respect to education, the short answer would seem to be no. As Gibbs said in the Australian Assistance Plan case, ''the executive cannot act in respect of a matter which falls entirely outside the legislative competence of the Com- monwealth''. It is a topic which lies within the exclusive jurisdiction of the states. How is the Commonwealth to draw down funds from the Consolidated Revenue Fund to make lawful pay- ments to satisfy its obligations under the agreement? The COAG Reform Fund Act establishes and designates the COAG Reform Fund as a special account under s21 of the Financial Management and Accountability Act. This special account is an account within the Consolidated Revenue Fund. An amount credited to the COAG Reform Fund for the purpose of national partnership payments is done by executive determination under the Federal Financial Relations Act. It is a legislative instrument, but is not a disallowable one. In doing so, Parlia- ment has abdicated its legislative responsibilities to the executive. If the amount so credited is not ''for the purposes of the Commonwealth'' in accordance with s81 of the Constitution -- and education is not such a purpose -- or not ''drawn from the Treasury except under appropriation by law'' in accordance with s83 of the Consti- tution, then the crediting of the COAG Reform Fund with the amount would seem to be unlawful. As indeed would the debiting of the COAG Reform Account for a standing appropriation to cover a payment for the BER. Policing the bright line An inherent difficulty in all federal unions is the policing of the boundaries between the functions assigned to the central government and those assigned to sub-national governments, namely states, provinces, etc. Two questions must be answered. First, who is to adjudicate on the demarcation between federal and state responsibilities and, second, who has the right to initiate demarcation proceedings? Sir John Downer saw the High Court as the only guarantee that the Constitution could not be arbitrarily flouted by any government, however popular. Such a guarantee is an arid one if there is no right to bring proceedings to have the claimed guarantee enforced. The res- ponsibility for ensuring that there is compliance with the Constitution is vested with the federal attorney- general. But as Gibbs shrewdly ob- served: [It] is somewhat visionary to suppose that the citizens of the state could confidently rely upon the Commonwealth to protect them against unconstitutional action for which the Commonwealth itself was responsible. In 1910, the Judiciary Act was amend- ed to allow the High Court to give advisory opinions to the governor- general. Because such opinions did not constitute a matter which affected legal rights, the court struck that provision down by a five to one majority in 1921. Frankly, advisory opinions are not the answer. At first blush it is an attractive solution, but it is defective because there is no dispute. It is to ask the High Court to confirm what the legislature has done. It can only decide on the validity of a law from the evidence adduced before it by the Commonwealth. Here, there would not even be a special case based on agreed facts. It smacks of the court condoning or rubber-stamping the wishes of the legislature. An alternative solution is to provide for the states' attorneys-general to be subject to a show cause action as to why they should not bring a relator action in the High Court to impugn legislation if requested by a citizen or group of citizens. No longer would the states have the capacity to condone Federal Parliament's regular violation of the Constitution. Such a right would need to be granted to the citizen by the Constitution. An amendment like this would plug the gap so as to stop the Constitution from ''being arbitrarily flouted by any government, however popular'', to use Downer's words. Conclusion The present dysfunctional state of the federal union is characterised by the way the Commonwealth has usurped many of the functions of state govern- ments. Cooperative federalism has given way to collaborative federalism and now to executive federalism. All accomplished by the Commonwealth's cards of entry: standard, gold, platinum and the oyster card. The COAG Reform Act and the Federal Financial Relations Act, together with the Intergovernmental Agreement on Federal Financial Rela- tions and the suite of national partner- ship agreements ushered in a new era of executive federalism. They are prop- erly characterised as domestic treaties, most of which would be incapable of being ratified by the Parliament because they involve an overreaching of power. They are not laws, but political agreements. Yet the Parlia- ment has seen fit to appropriate funds to the COAG Reform Fund to pay the states in accordance with an invalid intergovernmental agreement or natio- nal partnership agreement. Parliament has effectively abdicated its legislative responsibility to the executive, allowing it to make agree- ments on topics for which Parliament has no power to make laws. These executive agreements are tantamount to a scheme or contrivance resulting in a disregard of the Constitution. The end result is an impermissible amendment or abdication by Parliament with respect to s96 by, in essence, substitut- ing the word ''executive'' for ''Parlia- ment'' for the third last word of the section, so that it would read ''the Parliament may grant financial assist- ance to any state on such terms and conditions as the executive [sic Parlia- ment] thinks fit''. Yet our watchdog, the Commonwealth Auditor-General, the so-called ally of the people, has refused to bark. Canberra's political playpen must focus on its constitutional responsibili- ties and stop usurping the states' functions. The policing of these bound- aries could be achieved by altering the Constitution to require the attorney- general of a state to bring a relator action at the request of a citizen, unless there are good grounds to the contrary. Bryan Pape is a barrister and a senior lecturer at the University of New England. He challenged unsuccessfully the legality of the Rudd government's stimulus spending in the High Court in 2009. This is an edited version of his Sir Harry Gibbs Memorial Oration to Samuel Griffith Society last month.
PSI - October