The goings on in Parliament last week might not provide the best vantage point to reflect on what we value in our democratic system of government.
Imagine, however, an alternative system where the executive arms of government meet behind closed doors and make crucial decisions on matters of national policy, where the agenda is not published beforehand and where the detail of policy only comes to light in a communique published after decisions have been made.
Consider further a refinement of that system which means that unelected vested interests get a seat at the table in the lead up to the secret meeting and get make their demands heard on key parts of the policy agenda.
That in a nutshell is how the Council of Australian Governments (COAG) and the recently-developed Business Advisory Forum (BAF) interact. COAG meets again in Canberra this Friday. The meeting will be preceded by a meeting on Thursday of the BAF, a new institution that appears to have been hastily cobbled together prior to the first COAG meeting in April this year. Its precise membership and terms of reference appear never to have been announced. Quite where or from whom the idea even came from is unclear.
Unsurprisingly, given these hazy origins, the idea that we ought to have a business body with special access to COAG has gone largely unscrutinised. The first meeting of the BAF took place the day before the April COAG meeting.
The Business Council of Australia hastily prepared a discussion paper and released it the day before the Forum, calling for a slashing of so-called green tape. The Prime Minister agreed to the business demands and took the proposals to COAG. State and Territory leaders duly fell in line. As is the practice with COAG, the first official notification of the detail of the proposals was in the communique following the meeting.
It is a broad-ranging package of measures but most significant is the proposal for the Commonwealth to hand over responsibility for administration of national environmental laws to the States by March next year. It is this proposal that has infuriated conservation groups, principally because it will undermine environmental protections. It will take us back to a period when the environment was left almost entirely to state governments with the Commonwealth government looking on from the constitutional sidelines.
Just as infuriating is the manner in which a change of such far-reaching significance became a national policy priority. The protection and preservation of our natural heritage is a matter of broad public interest. Our national environmental law, the Environment Protection and Biodiversity Conservation Act 1999, is far from perfect, but it does represent hard-won gains from numerous campaigns calling for national leadership on environmental matters over a 40-year period. Environmental protection is not just an issue of business efficiency.
Back in 1983 the Hawke government took the significant step of drawing on international affairs powers to declare the Franklin River a World Heritage Area. This followed significant public debate and controversy. The commitment to protect the area was a central issue in the 1983 election campaign.
The legislation passed by the Commonwealth Parliament was the subject of one of the most significant High Court cases in the history of the Australian federation, the Franklin Dam case, with the High Court upholding the power of the Commonwealth to intervene using its international affairs powers to protect the environment, an area that had hitherto been solely the province of state governments.
In short the episode was one that traversed the full gamut of the institutions of our democracy — including no less than a federal election and a High Court challenge. The contrast with the proposal to hand back these powers to the States that the Prime Minister committed to at the behest of business could not be more stark.
How have we found ourselves in this situation? In part it is a reflection of the "democratic deficit" inherent in intergovernmental relations in a federal system. Any decision making made by a body comprising the executive arms of government at the national and sub-national level has a tendency to sideline or pre-empt the role of parliaments to which those executive arms are supposed to be accountable. Parliamentarians have long complained about being disrespected by being treated as a "rubber stamp" for decisions made by ministers at COAG.
This democratic deficit is made worse by the development of the Business Advisory Forum. Giving interests including business a seat at the pre-COAG discussion table may not be objectionable in itself — indeed it amounts to an admission that COAG needs to be more consultative. But giving business the only seat at the table most certainly is objectionable.
What needs to be done? Firstly, it is important to recognise that COAG is an important institution in our federal system. A national focus on matters on matters of national interest such as environmental protection but also other important issues (disability insurance, education, health) requires an institution that can foster coordination among multiple governments in our Federal system and get things done.
It is precisely because it is such an important institution that more attention needs to be paid to making COAG processes consistent with democratic principles. As a first step, COAG processes ought to be made more transparent and COAG more accountable. Initiatives in recent years such as the COAG Reform Council aim to make COAG accountable for following through with its recommendations, but this does not address the more fundamental issues of accountability and transparency in COAG processes.
Far-reaching changes ought to be considered, such as a legislative foundation formalising COAG, its role and procedures or even constitutional reform. Each of these would be a major undertaking, but some initial steps would be easy to implement straight away. Simply publishing the agenda detailing proposals up for consideration for everyone to scrutinise, would make the process much more transparent than it is now.
Secondly, why not embrace the idea of forums that help guide the agenda before COAG meetings to assist our Prime Minister and premiers in making well informed decisions in the national interest? But let’s involve not just business but unions, welfare and environmental groups. We need a broader civil society forum in the lead up to COAG meetings, not just a forum restricted to the business elite.
Finally, having been given a seat at the table business needs to demonstrate how they are going to exercise this privileged access responsibly and in the broader public interest. A good start would be for individual members of Business Council of Australia and other BAF members to come clean with the Australian public on where they stand on the Commonwealth’s role in environmental protection.
One might expect miners and property developers to be enthusiasts for proposals to get the Commonwealth out of the environmental protection picture (although just how promoting multiple state-based regimes administered by poorly resourced state governments will add to business efficiency does not seem to have been considered). But what about the rest of our responsible business leadership? Do BCA members such as ANZ, Qantas, and Woolworths for example, really support a wind back of our national environmental laws? They will have an excellent opportuinty to declare where they stand after Friday’s meeting.
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