Recognition of local government in the Constitution by referenda in 2103

Notes regarding the recognition of local government by referenda in 2013

The idea that we allow the constitutional recognition of local government will face a host of barriers, when it comes to selling the ideal to we the people, considering we have said no, twice in the past, 1974 and 1988.

There are several ways in which to include local government in our constitution, financially as the LCA would prefer, and the main aim of local government in need of financial security, democratic, the hardest sell and as a third tier of government, an option that would be lost before the first shot is fired, and one of a symbolic nature.

If we tackle the financial security option, section 96 of the constitution could be amended to read “new words highlighted”

(the Parliament may grant financial assistance to any State “or to any local government body” on such terms and conditions as the Parliament sees fit)

“The case of  Pape vs Commissioner of Taxation (2009) highlighted the need for financial recognition to ensure clear passage of commonwealth funding”

The issue of terms would still open the door to controlling forces on the freedom of local government to operate, and may end up a wedge on policy separatism from Commonwealth and State ideals, in particular when alternate parties are elected at state and federal level.

To go down the path of democratic inclusion, would open the door to mass speculation and fear, in respect to another over politicised tier of government, with legislation of state government now empowering local government bodies. State governments would have trouble accepting such a shift as to who controls the local direction of their arena, of particular concern for the States and Territories would be the retention of the power to dismiss a local government and appoint an administration in the limited number of cases where a council is either corrupt or dysfunctional.

This situation in itself opens the door to local government falling back on inclusion in the state constitution rather than the commonwealth, if however a correlation can be found which protects the state interests, it would be along the lines of “Each State shall, and each Territory may, provide for the establishment of, or continuance of a system of local government bodies elected in accordance with the laws of the State or Territory”

Any option that relates to constitutional recognition beyond simple matters of funding, will interfere with the ability for State government to police local issues, such as the pre-mentioned corruption issues and indeed possibly include by-laws and the state’s legislative agenda, not to mention the high court may be forced to throw their hat in the ring regarding any inclusion of local government in the preamble.

Inclusion at state constitutional level would allow for greater detail, without fear of well established grass roots NO Campaigns, but this option is not on the LGA’s preferred lists, as it is the federal grants they wish to receive direct and without state government restrictions.

Having spent many years on the NO side of constitutional recognition, it seems from a constitutional level that inclusion in section 96 of the Act, would be acceptable to both voters and the Local council, without impeding on the separation of powers, or the original intention of the Commonwealth Constitution Act itself.

Local government bodies have existed in Australia since the establishment of the Adelaide Corporation (now the City of Adelaide) in 1840. Across Australia, the 560 odd local government bodies, promote local interests and deliver important services and infrastructure at a direct community level.

It would be only fair as such, that these bodies received some official recognition, but to go beyond financial security, I feel too many issues would need to be addressed, leaving any such sell to possible failure.

The councils are already putting aside a rather tidy sum, to sell their chosen ideal, so let’s hope they stick with change that will this time be acceptable to the public of Australia this time. Over the past hundred years or so, only 8 out of 44 referenda have been carried. In Sir Robert Menzies’ words, “to get an affirmative vote from the Australian people on a referendum proposal is one of the labours of Hercules.

The only changes we the people have supported in the past, have been based around state debt in 1910 and 1928, Social services in 1946, Aboriginals in 1967 and in 1977 alterations to the Senate casual vacancies, referendums, the retirement of judges and our national song.

Even thought the Commonwealth Parliament formally acknowledged the role of local government in Australia in 2006, it did not go as far as recommending constitutional recognition, as they themselves would be well aware of the issues such a move would face.

Recognition could also enhance the ability of local councils to advocate the interests of their communities through collaboration with other levels of government. It could thus make a practical difference to local government’s ability to deliver local services and infrastructure, and to its future development as an integral part of the Australian Federation.

The only other avenue that I believe will be offered up by state government will be nothing more than symbolic, as they have self interest in retaining full control of local government agenda and finances, another fact that supports financial recognition to allow some freedom for local governance.

There is however another issue facing local government and that is the ground swell of opposition to their current use of by-laws, which are written up by state government and given to the local government bodies to enforce.

There would be huge opposition from many political activists to any inclusion that would further empower councils/shires to write law, and that in itself would also be a huge imposition on the daily running of councils. Becoming a third tier of government would be a huge impost on both the councils and the people, adding the risk of politicizing local government and with it the usual waste and cost burden to the local constituents.

The simple adding of the words “or to any local government body” to section 96, seems an acceptable way forward for local government, and will allow direct funding from commonwealth grants, without interference by state governments whilst ensuring the present separation of powers remain intact.

 

Mark Aldridge

Independent candidate and Community activist.

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