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Florida State University Journal of Transnational Law & Policy

Abstract

The COVID-19 pandemic has challenged previously understood boundaries between jurisdictions and the balance of power between national, state and territory governments in Australia. The crisis served as a catalyst for long called for-yet unexpected-reform of the peak intergovernmental body, the Council of Australian Governments ('COAG') which was replaced by the National Cabinet to ensure coordinated intergovernmental responses. This article examines whether the new National Cabinet has emerged as an effective institution of intergovernmental cooperation in Australia's federalist structure. Is it capable of protecting human rights? Three main areas of rights protection were examined including health, work and rights of residents in aged care. The National Cabinet has been effective in providing decisive responses to contain and suppress COVID-19. However, second-wave outbreaks, particularly in Victoria, have revealed fault lines in the system. Within the three areas of rights protection examined we found that intergovernmental cooperation through the National Cabinet was most effective when there was a clear delineation of responsibility between the levels of government. However, the protection of aged care residents in particular has revealed serious systemic deficiencies leading to blame-shifting between the levels of government over the boundaries of responsibility. As an institution of intergovernmental cooperation, the National Cabinet offers some advantages over the COAG. Frequent internet meetings of the National Cabinet have alleviated some criticisms that haunted COAG as being ineffective and overburdened with unnecessary procedure. Further, the heightened attention of the mass media has somewhat countered complaints about opaque decision-making and lack of accountability. Conversely, some fault lines begin to emerge around states acting in self-interested ways —hard-line border closures damaging both economic interests and individuals' freedom of movement. There are also indicators of centralisation with the emerging National Cabinet structure containing potential for power to shift from states and territories—which currently hold most of the constitutional powers relating to emergencies —to the Commonwealth. The National Cabinet served as a political and symbolic tribune for the Prime Minister rather than premiers and chief ministers. Whether the National Cabinet can overcome these fault lines remains to be seen. At least we note some positive signs that cooperative approaches are possible and effective when most needed.

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