Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

Captain Cabinet’s trapped in cabinets. Will he get out? Can he get out? … National Cabinet and Cabinet principles

I wouldn’t have guessed that Greg Jericho and Jason Wilson would go full Naomi Wolf on us, but this is the year of the Common Era 2o2o and who knows what will happen next?

There’s something about the ‘National Cabinet’ that makes people lose their minds.  Reasonable people can disagree about it, and there are more than a few awkwardnesses in what’s proposed.  In my view, the reason people are losing their minds is that it’s a novel proposal by the Federal Government and the wrong team is in charge.  If Rudd or Gillard had proposed it, Guardian writers would be defending it against unhinged attacks from News Corp.  The death spiral of political media continues.

Let’s do a quick unpacking of the issue in a way that reveals some of the available positions in this discussion.

Australia is a Federal system.  Despite how old federalism is, we are still discovering things about how it works and what are the limits of the possible.  For example, it was only six years ago that the High Court revealed that the Commonwealth executive power did not behave the way most people thought that it did. Federal executive power is more constrained than how it operates in most Westminster systems.

As most people know, I am not a fan of federalism.  I think it is hideously outdated for the challenges that we face today and are likely to face tomorrow.  It’s the sort of government structure that suits an age of curly wigs and horse-driven transport.  But I also recognise that you have to play with the hand that you are dealt: if you are trapped in a federal system, how can you innovate to make federalism work?

People get a bit spooked by the word ‘innovate’.  There is a risk that people become unnecessarily conservative in their understanding of what’s possible, but it’s vital to the ongoing success of our constitutional structure that people routinely test for new ways of doing things.  Y’know, like velociraptors testing the weaknesses of an electrified fence.

Federalism causes a lot of unnecessary problems and, if we’re not going to abolish the States, we need clever ways to coordinate jurisdictions so that we get sensible outcomes.  The classic example is professional indemnity.  Each jurisdiction requires certain professions to be registered in order to manage risks related to bad advice.  Let’s say you’re a chartered accountant living in Queensland, you’re travelling in New South Wales and take a call on your mobile phone from somebody calling from Victoria seeking some advice.  It would be really good if there was a consistent regime for the regulation of chartered accountants so that registering in Queensland meant that you were carrying the right level of insurance to work in New South Wales and take calls from Victoria.

We resolve that problem through a blisteringly complex system called professional standards legislation.  It’s a novel way of skirting around the edges of federalism so that you largely make it irrelevant which jurisdiction’s laws apply.

Australia’s federal system has always had bodies designed to coordinate activities across jurisdictions… but they’ve often been extremely clunky.  The most recent version of this body was the Council of Australian Governments: COAG.  It is an intergovernmental body with no independent decision making power of its own.  Its members are the heads of each jurisdiction (including the Territories) and the head of the Local Government Association… for some reason.  COAG has a bunch of subcommittees, including the Council of Attorneys-General (‘CAG’) which does a bunch of work on legislative harmonisation (including the proposed changes to defamation law).  What’s important is that this body works as a link between executive governments (and Local Governments).  Despite having model legislation for succession law drafted by CAG, parliaments have mostly neglected to enact it.  Also, despite CAG agreeing to model defamation law back in 2004, it didn’t stop Tasmania’s parliament from amending the Bill to suit their local Tasmanian needs.

But there have been problems with the model.  If you look closely at a lot of things related to COAG and CAG, you can see that sometimes they have backwards causality: members of those bodies will announce contested outcomes of meetings ahead of the meeting being held.  It’s a way of throwing your weight around: are the people who have doubts or concerns so convinced of their position that they’ll go against what’s been announced?

And then you’ve had scenarios where members have gone into meetings just for the theatre of ripping shreds of other members.

The result has been that COAG does not really have the sort of robust discussion that, perhaps, would have resulted in better outcomes.

One decision-making body that most people agree works pretty well is the Cabinet-model.  The ‘Cabinet’ refers to the privacy of the deliberation.  Both in practice and in theory, people are not supposed to know how matters were argued, providing the security that members can express strong dissenting views without it appearing seditious or treasonous.  But the trade off of that privacy and security is solidarity and collective responsibility.

Solidarity refers to the concept that the Cabinet, as a deliberative organ, acts as a cohesive unit in public.  It is related to the second concept, collective responsibility, that decisions of the Cabinet are attributible to all of them and not to individual members.

These are Westminster principles of Cabinet and there is very little controversy that a decision-making body could adopt these principles as part of its decision-making process.  The only controversy is very narrow: who can pierce the solidarity and collective responsibility to get behind the privacy and security of decision-making processes?  Given that the decisions made by Cabinet are tested in parliaments, it is unclear to what extent this is a real problem but some people, like Prof Nicholas Aroney, have flagged it as a potential concern.

So can a Cabinet be established to link executives within a federal structure?

And this is where there’s some more debate.  Walter Bagehot discusses Cabinet in terms of the fusion between legislatures and executives, but it was pretty clear that he was being a bit too romantic.  Cabinets in other systems (such as the United States) do not link legislatures and executives.  We already fondly discuss Australian government as a ‘Washminster’ system: is having a National Cabinet an adaptation that makes sense in our Federal-flavoured Westminster tradition?

I think that it does, but Prof Cheryl Saunders disagrees.  Her view is that the use of the word ‘Cabinet’ is confusing and results in logical impossibility because the Westminster Cabinet depends on the link between legislatures and executives.  My view is that the use of the word ‘Cabinet’ allows us to import conventions about solidarity and collective responsibility to improve the quality of the deliberation model, and that linking executives within a federal structure is a natural extension of Bagehot’s view about the nature of a Cabinet.

Another issue is membership and enforcing Cabinet conventions: if a Premier disagrees vehemently with a decision of National Cabinet, what is the effect of speaking out about the decision?  One would think that it would mean resigning from the National Cabinet in the same way that none of the premiers is forced to be a participant at COAG.  But this gets awkward: would the Prime Minister withhold an invitation to a future meeting of the National Cabinet if a member breached the conventions of Cabinet solidarity?  I think it’s here that we get into very strange and uncharted territory, but not one that is likely to eventuate.

And this is what I mean about democratic innovation: is the link between legislature and executive so essential to the understanding of a Cabinet, or is it an ‘accident unessential to its definition’ (to use Bagehot’s quote)?  Reasonable people can disagree, but I think here we see it comes to ‘When I use the word “Cabinet”, I mean precisely what I mean, nothing more and nothing less.’

The reason for all the drama yesterday was a fundamental confusion about Cabinet collective responsibility and responsible government.  Different concepts.  Responsible government is the principle that government depends upon the support of parliament in order to govern.  The United States has a weakened version of collective responsibility but not responsible government, for example.  It would be possible — but absolutely hectic — to have responsible government without collective responsibility (ministers would be able to say they disagree with the decisions of other ministers and vote against their legislation).

I think there are places where reasonable people could disagree about the appropriateness of a National Cabinet, but it’s absolutely bizarre for economics journos to go ham about complex areas of public law based entirely on their misunderstanding of core terms.  We do not have a political media that helps us to engage in debates about democratic innovation.


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