Common(wealth) Knowledge #36: What is a First Minister?

Cooperative federalism in post-COVID lockdown Australia.

On February 3rd, Prime Minister Anthony Albanese tweeted that, at a meeting of the National Cabinet, all First Ministers of Australia had agreed to support the Indigenous Voice to Parliament.

The tweet showed the Prime Minister, the six Premiers, and two Chief Ministers meeting in Canberra. But what exactly are ‘First Ministers,’ and where does this term come from?

Australians would be forgiven for not having heard this term before, as it has only recently been adopted into the political lingo of Australia. Still, the evidence suggests that it will become increasingly common in post-Covid Australia. So what’s it all about?

Put simply, ‘First Ministers’ is a catch-all phrase to describe the heads of government in countries within the British Commonwealth of Nations. This means the Prime Minister, Premiers, and Chief Ministers in Australia. Each of them is the elected leader of their respective government, and the head of a Cabinet. First Ministers are responsible for running the government of their country, state, or territory, whereas the head of government is officially King Charles III, represented by the Governor-General at the Commonwealth level and in the Australian Capital Territory, the Governors of the six States, and the Administrator of the Northern Territory. This is not unlike the arrangement in European countries like France, where there is a Prime Minister, the head of government, and a President, the head of state.

The term ‘First Minister’ is most common in Canada and the United Kingdom, both countries in the Commonwealth of Nations. However, they take different forms in those two countries. In the United Kingdom, the First Ministers are the heads of the devolved governments of Northern Ireland, Scotland, and Wales. These devolved governments are more like Australian territories than states. In Canada, the First Ministers are the Prime Minister and the Premiers of the provinces and territories. While the UK model is certainly important for providing context, it is the use of the term in Canada, whose federal model predates the devolved governments in the UK, which is relevant for us.

The Canadian federal model places increased importance on the federal government, rather than the provinces and territories. The Constitution Acts, 1867 to 1982 (CA), specifically outlines the powers of the provinces and the federal government, and says that any powers not mentioned listed are given to the federal government. In contrast, ss 106-108 of the Australian Constitution gives these ‘residual’ powers to the states instead.

The inverse Canadian model means that there has historically been much more cooperation between the provincial and federal governments in Canada, as the provincial governments are more dependent on the federal government. This has led to regular meetings of the various heads of government, known as the First Ministers’ Conferences, which date back to 1906, although they have been known by various names since then.

Australia does not have this history of cooperation. The Council of Australian Governments wasn’t established until 1992. Unlike in Canada, the Commonwealth government does not have control over ‘residual powers,’ so it needs the cooperation of the states. However, state governments can refer the power to make laws on particular issues to the Commonwealth government under Section 51(xxxvii), allowing the Commonwealth government to then pass laws that are binding on the state governments. In 2006, the Commonwealth government won New South Wales v Commonwealth, where, after all States but Victoria refused to refer an industrial relations power to the Commonwealth, the Commonwealth successfully relied on its corporation power under Section 51(xx) to pass Work Choices, now Fair Works, legislation.

A need for coordination isn’t new. Back before Federation, one issue the founders had to deal with was the standardisation of railroads, as the width of the tracks varied from colony to colony, making inter-colony travel difficult. As Professor Gerard Carney points out in his book The Constitutional Systems of the Australian States and Territories, coordination is also important for federal elections, as the Governor-General issues the writs to hold elections for the House of Representatives, but the state Governors issue the writs for Senate elections.

However, COAG and the methods of cooperation weren’t without their critics. Section 96 allows the Commonwealth government to grant money to the States, but can impose “terms and conditions” on the grants that force the States to act in a certain way. Just three years after COAG was formed, federalism expert Professor Martin Painter criticised the motivations behind intergovernmental cooperation, saying that:

“Cooperation either is a process in which governments get together to enlarge the reach or scope of public power for their individual benefit, or a sham behind which the Commonwealth concentrates its power vis a vis other governments” (p. 5).

COAG fell short of the Canadian model in many ways. Chief among these was that it wasn’t a forum for constitutional reform, which Australia hasn’t had since the Australian Constitutional Conventions of 1988, which predate COAG.

However, this changed with COVID-19. The Morrison government replaced COAG with the National Cabinet in March 2020. At the same time, the government adopted the term ‘First Ministers.’ This collective term represented a shift towards Canadian-style cooperation. Australian legal circles had already begun using terms like that one to refer to the heads of government collectively. In her 2018 book The Veiled Sceptre, Professor Anne Twomey used ‘chief minister’ to collectively refer to the heads of government of countries throughout the Commonwealth of Nations that used the Westminster System, including the UK, Canada, and New Zealand.

During the Covid lockdowns, National Cabinet facilitated coordination between the federal, state, and territory governments to deal with the health crisis. Despite the Canadian federal division of power operating differently from that of Australia, it is similar enough to be applied in an Australian context. While the state governments, and to an extent the territory governments, are more self-sufficient than the Canadian provincial governments, thanks to the residual powers they possess, there was still a need for some federal involvement in Covid-19 management. Although I wrote earlier in ‘Federalism and Covid-19 restrictions - who has the final say?’ that most of the burden fell on the states, international borders were still the responsibility of the federal government, and the federal government was also responsible for providing funding to states. This was made easier by the communication channels of the National Cabinet.

As the Albanese government moves towards a post-Covid Australia, it seems that ‘First Ministers’ and the National Cabinet will be sticking around. The agreement signed by the first Ministers on February 13th indicates that, although state and territory governments are less involved in constitutional amendments than the federal Parliament, they are still being included in constitutional reform dialogue. And the formality of this that the National Cabinet provides may mean that National Cabinet will become Australia’s answer to Canada’s First Ministers’ Conferences, and already has one advantage over Canada because it meets more regularly.

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Sources: Anne Twomey, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018).

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

Constitution Acts, 1867 to 1982 (CA).

Gerard Carney, The Constitutional Systems of the Australian States and Territories (Cambridge University Press, 2018).

Martin Painter, The Council of Australian Governments and Intergovernmental Cooperation - Competitive or Collaborative Federalism? (Canberral Federalism Research Centre, Australian National University, No. 28, June 1995).

New South Wales v Commonwealth (2006) 229 CLR 1; [2006] HCA 52.

Elijah Granet’s ‘Better AustLII’ web extension.