Many issues considered by the Special Premiers' Conferences and the Council of Australian Governments did not result in new forms of joint action among governments. The most notable failure was fiscal reform, where the Commonwealth refused to accept the demands of the states to provide them with a more secure, guaranteed source of revenuesharing than was available under the current system. Indeed, this refusal, which meant that the states continued to rely heavily on Commonwealth grants for their basic recurrent expenditures, perpetuated a significant source of entanglement and laid the basis for the Commonwealth to insist on collaborative arrangements in other areas of policy, when some states might have preferred different forms of relationship. As discussed in Chapter 2, the model of federalism underlying the states' demand for more fiscal autonomy was arm'slength, or competitive, not collaborative.

The fiscal reform issue aside, other issues that appeared on the agenda of SPC and COAG did not result in agreement, but only served to remind observers that the federal system, while cooperative in some aspects, remained adversarial in others. Attempts to remove inconsistencies in industrial relations legislation, for example, were doomed so long as it was to the advantage of different governments with markedly different models of such legislation to retain the capacity to pass their own laws. Here, federal politics made it advantageous to heighten difference rather than remove it. Another case was the Mabo issue concerning Aboriginal land rights, which appeared on the agenda of the June 1993 COAG meeting and resulted in heated argument, but no more.

The main aim of this chapter is to provide a narrative account of the work done by the Special Premiers' Conferences and the Council of Australian Governments (SPC and COAG) between 1990 and 1997. A couple of themes will emerge: first, that a considerable number of cooperative schemes and collaborative institutions were created during this period; but second, that the politics of reform was typically adversarial, and that the outcomes in some cases remained strongly contested by some of the protagonists. One recurring issue was the threat of Commonwealth domination, and in response the challenge of state resistance. For the sake of economic reform, the Commonwealth needed state cooperation. The Commonwealth had taken the lead during the 1980s, with deregulation of the financial markets in 1983-84, the ending of the two-airline policy and commercialisation of business enterprises, tariff reductions in 1988 and beyond and, by the end of the decade, halting steps in a privatisation program. It was now over to the states, as many saw it: electricity, gas, water, the transport industries, education and training, health and so on were all state-managed industries, while the states also were responsible for the existence of interstate barriers to free movement of goods and services, and a plethora of state regulatory regimes and instruments. The states were depicted as laggards. As Bob Hawke put it in his July 1990 speech: ‘microeconomic reform … is absolutely essential if we are to have a more competitive economy. My Government has acted to reform … areas of virtually exclusive Commonwealth control. We still have unfinished business … In advancing to the next stage, the co-operation of the states is essential …’.

This book has been concerned with the way in which federal arrangements were reshaped by the efforts of state and Commonwealth governments to implement an economic reform agenda. The initiative launched by Bob Hawke in 1990 carried with it the high hopes of advocates of fundamental federal reform. Federalism was accused of many faults, most of all of retarding economic modernisation. Some federal critics eager to see progress on an agenda of microeconomic reform revived arguments about the frustrations of federalism, bewailing the costs of parochialism. But as, outlined in Chapter 2, there was deep disagreement among the protagonists in federal politics about the priorities for federal reform. Thus, some critics highlighted the costs of centralism rather than parochialism, particularly the centralisation of fiscal power. Looking back, we cannot say federalism was reshaped during this period according to any clearly articulated model set down at the outset. However, if the prospect of wholesale reform became bogged down in familiar federal debates and in struggles over turf, the movement gathered pace towards new federal arrangements through less dramatic means. If answers to some of the big questions could not be found, agreement was reached on many smaller ones through a spate of institution-building in and around the Special Premiers' Conferences and the Council of Australian Governments. Attention moved swiftly from seeing federalism as the problem, to seeing federal institutions as part of the solution. The result was a set of institutions and practices that I have labelled collaborative federalism.

Australia inherited the Westminster parliamentary system, with its strong executive tradition; the result is that intergovernmental relations are dominated by the executive arms of government. As well as the longstanding annual Premiers' Conferences, specific-purpose ministerial councils—for example a meeting of ministers of agriculture—and supporting officials' committees and working parties provide regular fora for consultation. A large number of ad hoc or standing administrative groups and other arrangements add to the complexity (ACIR 1984). These bodies are the media for information exchange and may deliberate on and oversee specific financial and program relations. Some of these relations are conducted under the auspices of formal intergovernmental agreements to enable joint action, in a number of cases being accompanied by schemes of uniform legislation and in some cases implemented through intergovernmental administrative arrangements such as a joint board or commission. Another set of relationships, more or less formalised, are those associated with Commonwealth specialpurpose payments for specific programs. All of this machinery is sustained by day-to-day contacts between individual officials, ‘so informal as to be beyond enumeration’ (Warhurst 1987, 261).

The increase in the number and scope of all types of intergovernmental arrangements has accelerated in recent years (Wettenhall 1985; ACIR 1986a; COAG 1993; JCPA 1995). John Warhurst (1983; 1987) has traced the progression in management forms from sectoral linkages between departments to more coherent, centrally coordinated relationships constructed and overseen by intergovernmental managers.

The tensions and dilemmas of intergovernmental financial relations have been highlighted at a number of points in this book. The states' vision of competitive, arm's-length federalism highlighted the need for wholesale reform to financial relations so as to guarantee the future viability of state governments as partners in the federation. The states called for a realignment of roles and responsibilities so as to reverse the incursion by the Commonwealth into state jurisdiction. They particularly wished to see a marked reduction in special-purpose payments (amounting to about 50 per cent of all transfers) and the absorption of these payments into general revenue-sharing arrangements. To them, the problem of duplication and overlap comprised the unnecessary involvement of the Commonwealth, through its financial muscle, in detailed program administration in areas of service delivery already adequately covered by state jurisdiction. The solution was disentanglement, through Commonwealth disengagement from major service sectors, conversion of special-purpose payments to block grants, or to untied revenue payments, and a ‘clean lines’ division of functions. They sought to reverse and unravel an already existing set of arrangements that had built up over many years around the plethora of specialpurpose payment programs.

The Commonwealth had a different perspective. So long as the Commonwealth retained political interests in directly shaping education, housing, health, transport and other programs, it needed to retain the financial capacity to assert those interests. Essentially, the Commonwealth's purpose in addressing the reform of roles and responsibilities was to achieve greater value for its financial and political investments in these programs.

Bob Hawke's New Federalism was born of pragmatism rather than principle: his political agenda required the states1 cooperation. Top of that agenda was success with economic reform, not federal reform. However, by taking a federal initiative, the Commonwealth both mobilised and became subject to a series of long-running federal debates. The language and imagery Hawke used to launch his initiative drew on contested presumptions, models and diagnoses of federalism, from which tensions and conflicts quickly became apparent. By offering the states a role on a new national stage, the prime minister opened the way for them to push their federal claims and arguments. At the same time, the states were vulnerable in this national forum in case they were swept up in a cooperative process not of their own making, in which their separate identities would be submerged in a drive for national uniformity and coordination.

The issues emphasised by the prime minister appeared disarmingly simple. First, the diagnosis—overlap, duplication and balkanisation; and second, the remedy—cooperative federalism. All that was being asked was a bit of housekeeping to remedy anomalies and make things neat and tidy. Quickly, however, it became plain that this language mobilised contradictory agendas. The states saw the problem of duplication in terms of repelling Commonwealth invasions of their jurisdiction, while the Commonwealth saw the problem in terms of a need for the states to submerge parochial concerns and agree to national standards and strategies. Sometimes, however, their interests coincided, and politicians and officials found themselves innovating and experimenting with new institutional, legal, financial and managerial techniques and instruments.

The aim of cooperation was clearly set out in the charter of the Council of Australian Governments (COAG), stated in a communique of May 1992:

• increasing cooperation among governments in the national interest;

• cooperation among governments on reforms to achieve an integrated, efficient national economy and single national market;

• continuing structural reform of government and review of the relationships among governments consistent with the national interest;

• consultation on other major issues by agreement …

Cooperation—the search for common ground as a basis for joint action—is one among several ways of resolving problems of coordination. It is voluntary and 'signifies a relationship between entities capable of non cooperation—of divorce (or secession), competition or conflict' (Kincaid 1991). Thus, it is the outcome of a process of strategic choices by partners, in this case governments in a federation, who retain the capacity to resist or opt out. In this situation, even when cooperating they can still retain distinct (perhaps otherwise conflicting) purposes. Indeed, it may be more useful to think of intergovernmental relations in its ‘natural state’ as an arena of separate and mostly conflicting interests, and cooperation as an artefact that arises from conscious effort. What factors in Australia's federal system lead to cooperative strategies rather than to perpetual conflict? What sort of effort is required, and what circumstances are conducive to it?

Conflict, if unmitigated, can in practice interfere with cooperation, but the two are not mutually exclusive. In a stable federal system a measure of mutuality can be expected to evolve naturally, even in the presence of underlying conflict.

Australia's federal system has undergone a fundamental reshaping in recent years. State and Commonwealth governments have found themselves, often against their immediate wishes, cooperating ever more closely on joint schemes of policy and administration. As a consequence there has been a shift in the rules of the game of federal politics towards collaborative, as distinct from arm's-length, patterns of intergovernmental relations. While conflict and political sparring remain commonplace, state and Commonwealth ministers and officials are more and more to be observed sitting around the table and devising joint schemes of policy and administration that emphasise national uniformity and the removal of interstate barriers and differences. While the history of such collaboration goes back a long way, the advent of Bob Hawke's New Federalism in 1990, and the work of the Special Premiers' Conferences (SPC) and the Council of Australian Governments (COAG) that resulted from this initiative, greatly accelerated the trend. Just to give a few examples, state and Commonwealth governments since 1990 have agreed on a national competition policy; established a scheme of mutual recognition that sweeps away many barriers to interstate trade that formerly existed due to differing systems of state regulation; set up a National Road Transport Commission to devise new, uniform schemes of road vehicle regulation to be implemented by state governments; and introduced uniform gun laws. These and many other examples are discussed in this book. State and Commonwealth ministers and officials are not only cooperating more on joint schemes, they are doing so in new ways that blur their distinctiveness as separate political actors in a federal system.

The conventional story is straightforward enough. It was like this: the Aboriginal people and Torres Strait Islanders became British subjects when the Crown progressively asserted sovereignty over the Australian continent in 1788, 1824, 1829 and 1879. However, the new Australian Commonwealth defined citizenship in such a way as to exclude indigenous Australians as well as non-European residents. This situation was remedied by a series of measures culminating in the constitutional referendum of 1967. Aboriginal people and Torres Strait Islanders are now citizens on an equal footing with everyone else. But underpinning this story are the assumptions about sovereignty, about nations and states and about the course of Australian history. In this chapter I will discuss these assumptions, all of which need rigorous examination.

As we have seen (in Chapter 11) until the Mabo judgment of 1992 Australian law rested upon the doctrine of terra nullius which depicted Aboriginal Australia as a place without people or settled law, to use the words of the Privy Council's Lord Watson in Cooper v. Stuart in 1889. Australia was a legal desert without land tenure, politics or sovereignty. The British Crown became the first sovereign and the first proprietor. From the moment of annexation there was ‘only one sovereign, namely the King of England, and only one law, namely English law’.

The High Court modified the story in the Mabo judgment over-turning terra nullius as it related to property but reserved it in respect of sovereignty.

In their recent review of academic studies of citizenship, Will Kymlicka and Wayne Norman argue that although citizenship is a status to which not only entitlements but also responsibilities attach, entitlements have been of disproportionate interest to theorists of citizenship. In particular, ‘the left has not yet found a language of responsibility that it is comfortable with, or a set of concrete policies to promote these responsibilities’.

In Australia it seems gratuitous to spell out the responsibilities of indigenous Australians as citizens. Perhaps those responsibilities are no more and no less than the responsibilities of all Australian citizens. Or perhaps there are distinct indigenous responsibilities, just as many people would argue that there are distinct indigenous entitlements, such as native title. Perhaps there are ways in which indigenous Australians, as the original and colonised people, have fewer responsibilities as citizens. Whichever way you begin to look at the matter, it is easier to criticise a residual colonialism for failing to actualise indigenous citizenship entitlements than to write of the responsibilities of indigenous Australian citizens.

Yet our understanding of the contemporary forms of Australian citizenship is impoverished if we do not ask what responsibilities are implied in indigenous citizenship. The notion of indigenous self-determination entails a proposition about distinct indigenous citizenship responsibilities: indigenous people are responsible (though not exclusively) for the reproduction of their indigenous social order.

A surface reading of nineteenth century church records and civil registers in New South Wales indicates the inconsistencies, ambiguities and occasional indifference found in the bureaucratic inscription of Aboriginal identities by the state and its church agencies. Michael Herzfeld, in his book The Social Production of Indifference, examines the ways in which bureaucratic processes encode categories of identity that become criteria for inclusion or exclusion in the nation state. He argues that bureaucratic neglect of a class of people who should logically be included in administrative processes may look like official indifference but the exclusion is neither meaningless nor inconsequential. Instead, such an oversight indicates ‘a [passive] rejection of those who are different’ providing a ‘moral alibi for inaction’ which can tacitly sanction repressive actions against the excluded group. These may range from petty discriminations to genocidal killings. Bryan Turner, in his article ‘Personhood and Citizenship’, looks closely at the links between legal identity and civil status. According to Turner the extent to which the identity of an individual person or a category of people is socially recognised and legally constituted is related to their qualification to enjoy full civil rights. In this chapter I will argue that, in the case of New South Wales Aboriginal people, the British and colonial administrations were unable to develop a comprehensive and/or appropriate definition of what constituted Aboriginality and its position with respect to European society.