How to test whether a government controls the issue

The short answer

test whether a government controls the issue

To test whether a particular government controls a policy issue, map the issue through five layers: constitutional power, legislative authority, portfolio allocation, funding responsibility and administrative delivery. Start by identifying whether the subject matter falls within the Commonwealth's enumerated powers under section 51 of the Constitution or is a residual state power. Then check whether there is an Act of Parliament that specifically governs that area, and at which level of government that Act operates. Next, identify the ministerial portfolio and department responsible under the government's Administrative Arrangements Order. Trace the source of funding through budget papers and intergovernmental agreements. Finally, identify which agency actually delivers the service or regulation. An issue said to be the responsibility of a particular government is often shared, and the most prominent speaker is not necessarily the authority that controls the matter.

This is a method for assessing public claims, not a verdict on a party or a direction on how to vote. Conclusions should change when the underlying law, data or implementation evidence changes.

The useful question is not only “what is the rule?” but also “who administers it, which document controls it, and when might it change?” That distinction prevents an accurate general explanation from becoming wrong advice in a particular election, chamber or policy setting.

Evidence review

Constitutional power as the first filter

The most fundamental question is whether the Commonwealth has constitutional authority to legislate on the subject. Section 51 of the Constitution lists the specific heads of power under which the Commonwealth Parliament may make laws, including trade and commerce, taxation, defence, external affairs, immigration, corporations, marriage and divorce, and social security. If a subject does not fall within section 51 or another constitutional provision, the Commonwealth cannot make a binding law on it, though it may influence the area through tied grants to the states under section 96.

States retain residual legislative power over all subjects not exclusively given to the Commonwealth, including education, health, policing, transport, land use and local government. The High Court resolves disputes about whether a Commonwealth law exceeds the constitutional boundaries. A claim that the Commonwealth is responsible for an area that falls within residual state power should be treated with caution unless there is a specific constitutional head of power, treaty obligation or funding agreement that brings it within Commonwealth reach.

Evidence review

Legislative authority

Once you have identified the level of government with constitutional authority, find the specific Act that governs the policy area. The Federal Register of Legislation at legislation.gov.au is the authoritative source for Commonwealth Acts and legislative instruments. State legislation is published on each state's legislation website. The Act should define the responsible minister, the administering agency, the powers and functions of the regulator and the rights and obligations of affected persons.

Sometimes an issue is governed by multiple Acts at multiple levels. Health regulation, for example, involves Commonwealth legislation on pharmaceuticals and Medicare, state legislation on hospital administration and public health, and professional registration legislation that operates through a national scheme enacted by each state. When a speaker claims the government or the state government should fix a particular problem, checking the legislative framework will often reveal that the power to fix it is divided among several governments and agencies.

Evidence review

Portfolio, department and Administrative Arrangements Order

At the Commonwealth level, the Administrative Arrangements Order is a formal instrument made by the Governor-General that allocates responsibility for Acts of Parliament among ministers and departments. It provides the authoritative statement of which minister and department administer each Act. The AAO is updated whenever there is a change of government or a machinery of government change and is published on the Federal Register of Legislation and the Department of the Prime Minister and Cabinet website.

State and territory governments have equivalent instruments. If you are assessing a claim about which government department should do something, check the AAO for the relevant jurisdiction. A claim that the Minister for Health should act on a particular matter is only accurate if the matter falls within a portfolio Act allocated to that minister under the current AAO.

Evidence review

Funding and intergovernmental agreements

Even when legislative authority sits with one level of government, funding often comes from another. The Commonwealth provides substantial funding to the states for hospitals, schools, roads and housing through specific purpose payments and national partnership agreements. These agreements are published on the Federal Financial Relations website and the relevant department websites. Budget papers for both the Commonwealth and the relevant state provide the funding figures for each financial year.

A claim that the state government should fund a particular program is misleading if the Commonwealth provides most of the funding or if funding is governed by a national agreement that specifies joint contributions. Similarly, a claim that the Commonwealth has cut funding for a program may be inaccurate if the program is primarily state-funded and Commonwealth contributions are a small fraction of total spending. Trace the actual funding source and quantum through the budget papers of the government whose responsibility is being claimed.

Evidence review

Agency delivery and practical control

The final layer is actual delivery. Even when constitutional power, legislation, portfolio allocation and funding all point to one government, the service or regulation may be delivered by a different entity: a statutory authority, a government-owned corporation, a contracted private provider, a non-government organisation funded by grant, or a local council acting under state delegation. The annual report of the relevant department or agency is the most reliable public source for understanding who does what.

If you are testing a claim that a particular government is failing on an issue, ask: does this government make the laws, provide the money, employ the staff who deliver the service, or set the standards? The answer will usually be some combination of governments and agencies. A responsible assessment should describe the division of control accurately rather than attributing the issue to a single government for rhetorical convenience.

Common questions

Before you rely on the answer