So the “National Cabinet” imposed draconian measures yesterday on Australian to lesson the further spear of the Covid-19 virus. Not just me saying “draconian” – I think both Scott Morrison and the federal Chief Medical Officer nearly said that word too.
But before I talk about that train wreck – Scomo did well, but it was still a train wreck – let’s talk about the “National Cabinet”. This is what it is:
Formed at the Friday Council of Australian Government (COAG) meeting, the “wartime” national cabinet is made up of the nation’s first ministers – the Prime Minister, premiers and territory leaders – to co-ordinate and deliver a consistent national response to COVID-19.
Why should we be concerned?
Australia’s first national cabinet is finally doing what countless reviews, academics and government watches have pleaded for. Governments of all colours, and their agencies, working as one, in a form of co-operative federalism many officials had only dreamed of.
Hmmmmmm. “Co-operative” federalism? Let’s consult the actual constitution.
61. Executive power
The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.
62. Federal Executive Council
There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.
63. Provisions referring to Governor-General
The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council.
64. Ministers of State
The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.
Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen’s Ministers of State for the Commonwealth.
Ministers to sit in Parliament
After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.
Seems to me that there is no constitutional authority for this “National Cabinet”. As an aside, there is constitutional authority for “closing” the state borders despite s 92 of the Constitution. The notion that the borders are being “closed” is not quite correct – the borders are still open, it is just that many people crossing them will be required to go into 14 day quarantine.
This is what I think is happening. The Commonwealth might not actually have the power to do many of the things that are currently being done. The States do. The “National Cabinet” is an unconstitutional fig leaf that allows the States to coordinate their activities while appearing to have a unified national approach. That is NOT how a federal is meant to operate.
Now the counter-argument is this: This is a national emergency and we all need to pull together to pull through. This is not a time for constitutional niceties. We can all argue the toss after the fact. I think the legal doctrine is that a constitution is not a suicide note.
I’m not unsympathetic to that notion – but I’m not yet convinced we are at that stage yet.
So what about the press conference last night? Scomo performed well. Smacking down journalists earned him a lot of applause from many of my Facebook friends who are totally non-political. So the politics and the optics were good. What about the policy?
Well, not so good.
It is an incoherent combination to simultaneously argue that kids should continue to go to school while also bringing the school holidays forward. Incoherent. If we truly that kids might lose a year of school (Scomo is right about that) then the correct policy would be to cancel the school holidays and push through as far as you can. The States have closed their school as fast as is practical. The media did pick up on that last night.
It is also incoherent for Scomo to argue that panic buying is unnecessary (he is correct here too) while also saying that undefined “stage 2” restrictions could be imposed at an undefined time with an undefined trigger. The media picked up on that point too.
For all this talk of “national unity” the state premiers have gone awol.
State and territory leaders lost their nerve and incited panic across the country by announcing they were effectively shutting down their economies.
Nothing so far in this crisis has had the potential to confuse Australians more than the behaviour of the Victorian and NSW premiers, primarily, and the other state and territory leaders who fell in behind them.
Queensland was the only state to display any common sense. The unilateral decision to announce school closures and a lockdown of all but essential services before the national cabinet was reckless. And possibly the most irresponsible act since Federation. What they appeared to be proposing without any proper detail or explanation would have shut down 70 per cent of their workforces.
Update: There have been some great responses in the thread to this post. But here is additional information:
The national cabinet is not a war cabinet which includes members of the opposition as members of the government and it is not a rebadged COAG leaders meeting. It is a formally constituted federal cabinet committee, the members of which are heads of government.
That is a precisely what I thought it was and precisely why it has no constitutional authority.