By Angela Dorizas

It has been a long battle for local government in its quest to be included in the Australian Constitution. But at last the campaign has gained momentum, with the Federal Government and Coalition publicly backing the drive for reform.

In June, the Federal Government reaffirmed its support for constitutional change, with the Minister for Local Government, Anthony Albanese, committing $250,000 towards local government’s community education campaign.

Albanese says the funding has been provided to help the Australian Local Government Association (ALGA) facilitate community education campaigns within individual councils and shires. He says the Government is committed to introducing a referendum, but only “when the time is right”.

“We recognise that there is some way to go in bringing the community with us on this issue,” Albanese says.

The Coalition and the Australian Greens have joined with Labor in supporting constitutional reform. Leader of the Nationals and Shadow Minister for Local Government, Warren Truss, says the Coalition is willing to support constitutional recognition of local government, but with one caveat.

“I don’t want to support a referendum or put the taxpayers to the expense of having a referendum that might fail,” he tells Government News.

Attempts to include local government in the Constitution were put to the Australian public at referendums in 1974 and 1988. Both failed.

“We need to have a question that will be likely to be supported and I think one surrounding and assuring the legitimacy of the Commonwealth funding direct to local government, is one that is most likely to win support,” Truss says.

“Personally, I would like to go further than that, but if we put up a question that is one bridge too far for the public then we have lost the opportunity to make progress.”

The question

Federal Parliament will ultimately determine the question to be put to the Australian public, but in the meantime local government has provided three options as to how it might be recognised in the Constitution.

In his address to the national general assembly of local government in June, constitutional law expert and Anthony Mason Professor of public law at the University of NSW, George Williams, outlined the three proposals.

The first is symbolic recognition of local government in a new preamble, the second option is to recognise local government as an institution. The third option,  preferred by the sector, is financial recognition. This option, William says, responds to existing problems in the funding of local government.

Without formal recognition of local government in the Constitution, direct funding from the federal government is at risk of being ruled invalid. This was highlighted in case brought to the High Court last year, where University of New England law lecturer, Byran Pape, challenged the legality of payments delivered through the Rudd Government’s Nation Building and Jobs Plan.

Although unsuccessful, the case had the potential to recast funding arrangements between the three levels of government and invalidate the direct funding of local government.

“The decision of the High Court in Pape last year has cast significant doubt on the ability of the Commonwealth to continue its direct funding of local government,” Williams says.

“Major current funding for local government may well now be unconstitutional, and even if this funding is continued despite the risk, the High Court case will be likely to have a major impact on the willingness of federal government to fund future programs.”

Williams says that of the three options, financial recognition of local government is the most likely to be favoured by the Australian public.

“In the past, Australians have shown themselves willing to vote for referendums that fix a problem of this kind,” he says.

“A good example is the 1946 referendum put by the Chifley government… after a High Court decision threatened the ability of the Commonwealth to fund a national pharmaceutical benefits scheme. The people passed the change to overcome the High Court decision, giving federal Labor its only referendum victory in 25 attempts.”

A simple amendment to Section 96 of the Constitution would safeguard direct funding of local government. Section 96 could be amended to say: Parliament may grant financial assistance to any State or local government body on such terms and conditions as the Parliament thinks fit.

“This would be a commonsense, practical amendment that is needed now,” Williams says.

“It is an amendment that has a good chance of attracting support from across all of Australia’s political parties.”

New approach

With the Federal Government announcing a third round of Regional and Local Community Infrastructure funding and the Coalition promising that if elected it will continue direct funding of the sector, it appears that at the federal level this option has bipartisan support.

It is also the preferred option for local government, says ALGA president Geoff Lake.

“The preference of the ALGA board is what we’ve termed ‘financial recognition’,” Lake tells Government News.

“This time we’re motivated not by a sense of entitlement, but rather a sense of trying to fix up some of the funding mechanisms, which at the moment are not really in the interest of anybody.”

The pressure is now on to convince ratepayers why those funding mechanisms must be amended.

“Constitutional change is obviously rare in Australia, so there’s a reasonable burden and hurdle that needs to be jumped in order just to get to the point that people are willing to consider and engage with a question or proposal for constitutional change,” Lake says.

Having received the $250,000 in federal funding, ALGA is now consulting with local government associations in each state and territory to determine how best a community education campaign can be structured.

“I would expect that later this year the work of that campaign will start to become clear,” Lake says.

“The focus is going to be on using the money to assist councils to constructively engage with their local communities on the issue.

“Essentially, I think, how it will look will be a publication and a toolkit that would be made available to every council, but obviously left in the hands of each council to decide what level of activity they want to take in their community and how they want to use those tools.”

Read the full article in the August-September issue of Government News magazine

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