Education and Federalism: The Last Line of Defence

By Hodkinson, Byron | Review - Institute of Public Affairs, September 2011 | Go to article overview

Education and Federalism: The Last Line of Defence

Hodkinson, Byron, Review - Institute of Public Affairs

The only way the national curriculum can be scuppered now is through the High Court, writes Byron Hodkinson.

One of federalism's great virtues is that it provides a means to smaller government. Demarcated power limits the spending excesses of individual governments and provides a check to overarching state authority.

The politics of Australian federalism have gradually become more benign in recent years. State governments (and oppositions) have been content to adopt a small target strategy and shirk any inclination (and responsibility) to challenge the dominance of the Commonwealth's legislative reach or tax base. In fairness, the High Court hasn't exacdy encouraged political disobethence by the states against federal intervention in traditional state responsibilities, given the decisions in the Engineers' Case and the Tasmanian Dam Case, amongst others. Unfortunately, this pattern of behaviour has continued, with the national partnership agreement to fund the national curriculum and subsequent political deals for states to implement it.

Federalist advocates have lamented this encroachment of the federal government into traditional areas of state responsibility for decades.

Criticism of the concept of a national curriculum is a natural extension of such sentiment. These pages, as well as the IPA monograph, The National Curriculum: A Critique, edited by Chris Berg, have rightly been sceptical of the conceptual merits of, and content contained in the national curriculum. With parts of the history syllabus suggesting that human rights were somehow conceived in post-war Europe with the Universal Declaration of Human Rights, rather than through the development of liberal democracy centuries earlier, you'd be forgiven for thinking that the word 'revisionist' was missing from its tide.

One angle that opponents of the curriculum appear not to have yet fully considered is the constitutional basis on which it is funded, and administered by the Commonwealth.

Funding arrangements

The national curriculum is administered by the Australian Curriculum, Assessment and Reporting Authority (ACARA), a statutory body established by the parliament in 2008 and funded under a National Partnership Agreement (NPA) between the Commonwealth and the states.

Put blundy NPAs might best be characterised as 'sit down money' It incentivises the lazy approach adopted by states in recent years by providing Commonwealth funding for state responsibilities on terms that the states are happy with. Yet they generally do not constitute good policy. The Remote Indigenous Housing Program and the Building the Education Revolution program are two examples of national partnership agreements that have delivered poor outcomes for recipients of state services at little to no political cost for state governments.

NPAs are political motherhood statements that the High Court has held to be completely unenforceable. They receive no endorsement from the Commonwealth Parliamentinstead, the parliament, through legislation, has effectively outsourced part of its responsibility of overseeing Commonwealth expenditure to the executive. Not only are the agreements not legally enforceable; they are undemocratic.

The Commonwealth's contribution in 2010-11 alone amounted to $5-3 million. This was provided direcdy to ACARA instead of the usual practice of states receiving tied grants from the Commonwealth under section 96 of the constitution. This difference is critical. The ability of the Commonwealth to appropriate monies for specific purposes to the states on any terms it thinks fit has been accepted for decades- for instance, the Commonwealth Government withheld previously allocated money from Victoria in the mid-2000s for the EastLink motorway in Melbourne on the basis that it would no longer be toll-free.

The Pape Litigation

In 2009 Bryan Pape, a law lecturer and barrister, challenged an aspect of the then-Rudd Labor government's second fiscal stimulus package; specifically, the Tax Bonus Act, which provided for cash payments to low and middle income earners, with a stated rationale of boosting domestic spending and economic growth in the midst of an economic downturn. …

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