Cooperative federalism describes an attribute of a federation in which its governments engage in cooperative action to achieve common objectives. Australia and Nepal have federal constitutions with different histories, societal contexts and provisions. A common feature of all federal constitutions, including Australia and Nepal, is the cooperation in the division of power between components of the federation when a national approach is necessary in areas of public policy.

The Australian constitution does not spell out mechanisms for cooperation. The Constitution of Nepal expresses this provision in Article 51, for managing relations between federal, provincial and local level governments. The inclusion of cooperative mechanisms sends a clear message to those entrusted with government at the federal, provincial and local levels. However, cooperative federalism’s success or failure depends upon the vision, good faith and ability to put the nation's interests above political interests.

People seeking to advance cooperative federalism must work with the constitutional text. They do not have the luxury of amending it whenever a problem arises. Moreover, constitutions are not easy to amend. This difficulty is a built-in protection for the stability of the legal framework within which law-making power, executive power and judicial power are exercised. Amendment cannot be made to the Constitution of Nepal “in [a] manner to be prejudicial to sovereignty, territorial integrity, independence of Nepal and sovereignty vested in the people.” There are fundamental, albeit not well-defined, limits on the power of amendment. Amendment to provincial borders or the list of provincial powers set in Schedule 6 of the constitution requires the consent of provincial assemblies. If most of them provide a notice of rejection of such a Bill to the relevant House of the federal parliament within three months, it will become inoperative. Bills not requiring the consent of provincial assemblies need at least a two-thirds majority of the total number of the then members of both houses of the federal parliament.

On paper and in light of experience, it is harder to amend the Australian constitution. For any proposed Bill to be passed, it must pass through Parliament and be submitted to a popular referendum. It requires a majority of electors voting in a majority of the federation states before the amendment can occur. Australia has had 49 referendums and only seven have succeeded.

Given the challenges in amendments, constituent governments must cooperate in the national interest, ensuring constitutions’ effectiveness in dealing with national issues that engage the powers and responsibilities of federations’ components.

Nepal and Australia

The Constitution of Nepal expresses focus on cooperative federalism. Part 20 of the Constitution of Nepal is dedicated to inter-relations between the federation, the provinces and local levels. Article 232 states that the relations between the federation, provinces and local levels shall be based on the principles of cooperation, co-existence and coordination. Article 233, which deals with relations between provinces, provides mutual assistance in executing laws or judicial and administrative decisions. This may be roughly equivalent to Schedule 118 of the Australian Constitution: Full faith and credit shall be given throughout the Commonwealth to the laws, the public Acts and records and the judicial proceedings of every state. Article 233(3) provides that a province shall, in accordance with its provincial law, provide equal security, treatment and facility to residents of another province.

Article 233 of Nepal’s constitution, however, makes an additional provision not expressly covered in the Australian constitution, which authorises provinces to exchange information and consult with each other on common concerns and interests, coordinate their activities and laws and extend mutual assistance. Article 234 finds no equivalent in the Australian Constitution, which deals with establishing an Inter-Province Council to settle political disputes between the federation and a province and between provinces. The Article does not say how Inter-Province Councils will settle political disputes.

Mechanisms used to effect cooperative federalism in Australia come from the general legislative and executive powers of the Commonwealth and the states. One such provision is the power of the Commonwealth Parliament under Schedule 51(xxxvii) to make laws on matters referred by the Parliament or Parliaments of any state or states. This is done to extend the law only to states by whose Parliaments the matter is referred to or which afterwards adopt the law.

This mechanism can be used to give the Commonwealth Parliament law-making power on matters not expressly set out in the constitution. A state parliament may make a law referring to the Commonwealth's law-making power on a specific matter. An example is an agreement between state and federal governments about the states referring to the federal government a draft Bill for a law that the federal parliament may enact as a law of the Commonwealth. It may be a condition of the referral that there be no amendment to the referred law except with the referring state’s agreement. Another mechanism is the making of conditional grants by the Commonwealth Government to the States. This is provided for by Schedule 96

Centralising effect

There are caveats attached to cooperative federalism, designed to serve objectives beyond those achievable by exercising central legislative power and the separate exercise of powers by states or provinces. However, it may centralise power despite the inter-governmental agreements and supervisory arrangements in its implementation. Every topic treated, even by agreement, as requiring cooperative action becomes a topic best dealt with nationally. Once a topic is accorded national significance, it becomes difficult for participating governments to withdraw from the arrangements and allow fragmentation to be substituted for a unified approach. Cooperative arrangements based on inter-governmental agreements and ministerial councils also raise questions about the accountability of the executive governments to their Parliaments and the precise location of responsibility for the administration of the schemes.

Cooperative federalism is a means to an end—the exercise of legislative and administrative powers to achieve better national laws and practices than would be achieved if all governments simply went their own way under the constitution. It is important to prioritise where cooperative mechanisms should be established and implemented. There are many competing priorities in this area for Nepal, and a desire to explore the ways in which they may best be defined and addressed.