Today’s correspondent asks if I:

… would be able to write an article on upper leadership in both state and commonwealth governments. In particular I’m wondering if the PM can ‘pull rank’ over the premiers, either in normal day to day or during the pandemic. Thanks. Rhys.

Perhaps not really an ‘emergency law’ question but given the issues arising out of COVID it’s relevant. The short answer is that we live in a system of collaborative federalism where each government is responsible or areas within its constitutional responsibilities. One might imagine the arrangements look like:

But that is not the case. A better representation is:

Local Government is a creature of state legislature so it sits squarely under the states subject to the direction and control of the state government. The states however pre-existed (as colonies) the Commonwealth and exist independently of the Commonwealth. Remove the Australian Constitution and the states are still there (Australian Constitution s 107). But in my diagram the states sit slightly behind and below the Commonwealth.

First there are areas where the Commonwealth and State can both makes laws. If they do, and if a state law is inconsistent with a valid commonwealth law, the commonwealth law prevails. So in an area of Commonwealth constitutional responsibility the PM can ‘pull rank’ over the States and an area of current discussion is the ability of the Commonwealth to ‘veto’ agreements between states and other countries. The Commonwealth has legislative authority in the area of ‘external affairs’ (Australian Constitution s 51(xxix)) and it is the nation state of Australia (not the subnational states) that is the subject of international law. I would suggest that there is undoubted constitutional authority to give the Commonwealth the power to pass legislation to veto state agreements with other countries – to pull rank. (See also Luke Beck, ‘Explainer: can the federal government control the ability of states to sign deals with foreign governments?’ The Conversation (August 27, 2020)).

In other areas the Commonwealth can ‘pull rank’ because the Commonwealth has the money. The Commonwealth raises the taxes that the states and territories spend (hence my diagram as the states ‘behind’ the Commonwealth). Part of the reason for the GST agreements was to remove that threat by making the flow of money not depend on the federal budget but fixed arrangements. But the Commonwealth can say ‘we’ll fund something but only on these terms’ (Australian Constitution s 96).

But in areas that are not within the legislative responsibility of the Commonwealth, then they are matters for the states. Within the concept of collaborative federalism (ie they should try and work together and the view of the PM representing the Federal government is relevant) then no, the PM cannot ‘pull rank’.

That could change if the Commonwealth were to give itself emergency legislation – ie the power to declare a ‘national emergency’. Like the defence power that expands and contracts depending on the circumstances, if there was a defined concept of a national emergency then the Commonwealth reach and power may extend (as we can see the state powers do) during the period of a declared emergency. At the moment there is no overarching Commonwealth emergency management legislation but whether there should be is a question being considered by the Royal Commission into Natural National Disaster Arrangements.