The referendum on whether or not to financially recognise local government in the Australian constitution will be held soon, and it is well worth caring about the outcome. While to some it may seem like a boring administrative change, the result will have very real and tangible effects on millions of Australians.
Why a referendum?
A successful referendum will, in a nutshell, mean that federal government financial contributions made to councils will be constitutional. A number of recent rulings from the High Court have opened the doors for a challenge these financial contributions. In Pape v Commissioner of Taxation in 2009, the High Court found that the federal government could not provide financial contributions without the necessary legislation.
Why should I vote ‘yes’?
Put simply, if the referendum were to fail, direct funding from the federal government to local councils would be vulnerable to challenges. There are countless projects and services provided by local councils across the country which were made possible with federal government funding (such as the Roads to Recovery program). Should the referendum be unsuccessful, this funding could well be put into jeopardy.
A number of myths have been used by opponents to the referendum. The text below is taken from the website of the Local Government Association of South Australia:
Myth 1: This is Julia Gillard’s/Labor’s referendum.
This referendum is the result of six years of work by Local Government through the Australian Local Government Association (ALGA). The concept was agreed formally in documents signed by the Greens and Independents as a part of arrangements to secure Government in 2010. An expert panel considered it in 2011 and a Parliamentary Select Committee set up in 2012 recommended it. Opposition Leader Tony Abbott and Nationals Leader Barnaby Joyce have publicly supported it since 2011.
Myth 2: This referendum has been rushed.
After significant preliminary work the ALGA ran a Summit in Melbourne in 2008. Following the Pape case in the High Court in 2009 the ALGA formalised its position aimed at securing funding for communities through Councils. Opposition Leader Tony Abbott and Nationals Leader Barnaby Joyce gave a commitment to support financial recognition of Local Government in 2011 at the ALGA Conference in 2011.
Myth 3: There is no need for this referendum.
Specific legal advice indicates that since the Pape case in 2009, the High Court has no support for direct funding of Local Government. Programs such as the Howard Government’s “Roads to Recovery” program (worth $28m a year to SA communities) will fall at the slightest challenge. Even if not challenged directly, no Commonwealth agency will now recommend a direct funding model for fear it will be challenged.
Myth 4: The referendum is about “recognising” Local Government and entrenching it as a level of government.
No, this is about financial recognition. The ALGA sought specific legal advice in order to craft an amendment to the Constitution which would address the direct funding problem but not open the confusion surrounding the 1974 and 1988 referenda. The advice indicated that our objective could be achieved by amending Section 96 of the Constitution (a funding section). The High Court has previously found that Section 96 provides no power to make laws. As a result of the change, the Federal Government will only be able to offer funding to Councils, which may be refused. Indeed our advice is that the State, if it wished, would be able to prevent Councils receiving funding by passing laws to that effect.
Myth 5: It is a power grab by Canberra to control local Councils.
Through this amendment, the Commonwealth can not make laws about Local Government. The amendment makes clear that Local Government is created by, and accountable to State Parliaments. Indeed subject to requirements of State Constitutions, State Parliaments will continue to have the power to abolish Local Government without recourse to the Commonwealth.
Myth 6: The Coalition is opposed to recognising Local Government in the Constitution.
There is bipartisan support for this referendum.
Prior to the Hawke Referendum of 1988, the Liberal Party adopted a position in support of recognising Local Government in the constitution – through a committee chaired by Bob Katter Senior. Liberal Leader Tony Abbott and National Leader Barnaby Joyce have indicated their strong support for confirming the power of the Commonwealth to fund Councils directly as in the Howard initiated Roads to Recovery Program. Both gave a clear commitment to recognition in front of 900 Council delegates at the ALGA National General Assembly in 2011.
Myth 7: This question has been rejected twice before by the public. It’s the same question as posed in 1974 and 1988.
In 1974 the Whitlam referendum proposed amending Section 51 of the Constitution – the Commonwealth’s law-making powers. In 1988 the Hawke referendum proposed establishing a new section in the Constitution to recognise Local Government. Both created confusion about the extent of the change being sought and both were proposed by the Commonwealth. The current referendum has been sought and designed by Local Government only to confirm Federal funding powers.