Should we rush in on constitutional recognition of local government?

The constitutional recognition of local government in Australia has been on the political agenda for decades. Dr Gabrielle Appleby explores the latest proposals on this subject.

In January this year, a joint parliamentary committee made a recommendation in a preliminary report that the ability of the Commonwealth to grant financial assistance to local government be constitutionally entrenched. The joint committee’s work builds on the report from the Expert Panel on Constitutional Recognition of Local Government in December 2011.

The proposal for what is known as ‘financial recognition of local government’ has been recommended as a matter of some urgency on the basis that the recent High Court case that struck down the Commonwealth’s National School Chaplaincy Program (Williams v Commonwealth) has thrown the constitutionality of many Commonwealth funding programs into doubt, including those to local government such as the Road to Recovery program. (Further information on the details of the Williams decision and its implications for future Commonwealth funding can be found in my earlier post on the decision, here). 

It is true to say that the Williams decision threw doubt upon the constitutionality of many Commonwealth funding programs to local government. It also threw into doubt the constitutionality of many Commonwealth funding programs to non-local government actors, but the focus has been on ‘fixing’ the constitutional issue in relation to local government only. This in itself raises interesting questions about the government’s priorities, although I think it can probably be explained by reference to the Local Government Association’s long struggle for constitutional recognition and persistent lobbying. In short, the issue of financial recognition of local government has been a long-simmering issue that Williams has brought to the boil.

Financial recognition of local government has bipartisan support.  However, the speed with which the joint committee has recommended the Government and Parliament acts – putting a referendum to the Australian people at the September 2013 election, has driven the parties apart on the issue. 

The joint committee has called for further submissions on the terms of reference and the interim report and is due to report finally in March

I made a submission to the inquiry to express my significant concern over the timing of the referendum, which may see a previously innocuous referendum issue split by partisan division. It also leaves little time for the government to engage with the voters and explain the necessity of the referendum and the operation of the amendments. Further, there is a danger that State support of the proposal won’t be gained, which history has demonstrated will lessen its chances of success.

If the referendum is unsuccessful, there is a real danger that it will stall future referendums – entrenching once again in the psyche of the politicians and the public that constitutional change is exceptional and overly difficult in Australia. This may have serious repercussions for other referendums proposed into the future – on constitutional recognition of Aboriginal and Torres Strait Islander peoples, on four-year or fixed parliamentary terms or on State-Commonwealth financial relations. I believe there is therefore a real imperative for the Government to succeed in achieving constitutional change that effects the recognition of local government.  

Not only do I hold fears that if the referendum were to fail it may have a chilling effect for future referendums, but even if it is to succeed, I wonder whether it is the best outcome for local government and the community. Local government plays an important role in the community, providing many local services. It has its own democratic mandate and for many people they will feel closer to their local government representatives than their representatives in State or federal politics. Local government has long campaigned for constitutional recognition of its important role in the federal system and protect it, to varying degrees, from the whims of its current master, the States. Constitutional recognition has been fought to secure its existence and jurisdiction, its democratic mandate, its place in the federal system, and its financial viability. Yet, the current referendum proposal addresses only one of these issues. There is perhaps then a danger that this referendum may secure some financial security for local government, at the cost of constitutional recognition that would guard against these broader concerns.

If the referendum is put now on such a narrow question – financial recognition – the momentum may be lost for future consideration of broader issues relating to local government.

Dr Gabrielle Appleby is a Senior Lecturer at the Adelaide Law School. She researches and teaches in public law and has written on the scope of the Commonwealth’s spending power. She has previously provided commentary on the recognition of local government published in Independent Australia and her submission to the Joint Committee can be accessed here.

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