Posted on August 8, 2013 by
Local Government Constitutional Recognition: On again, Off again
The Prime Minister has announced that the referendum set for 14 September 2013 will now be abandoned. Citing the new Federal election date of 7 September as a reason for deferring the Constitutional question, Prime Minister Rudd said: ‘I’ve been a long term supporter of constitutional recognition for local government, but I think we’re going to have to look at that in the next term’.
The announcement is a frustrating and disappointing end to the most recent attempt by local government to gain Constitutional recognition.
Seesaw ride for the current referendum
The Federal Government appointed the Expert Panel on the Constitutional Recognition of Local Government (Panel). The Panel published its report in December 2011. Although there was argument for a fundemental change to recognise local government as a legitimate third tier of government with Constitutional guarantees, the Panel realised that State Governments would always be wary of separate recognition of Councils, and that securing Constitutional change without bi party support was almost impossible.
The Panel sought a minimalist change to give local government ‘financial recognition’. we have previously reported on the sound reasons for making a change to section 96 of the Constitution: see our previous article here.
Without separate financial recognition in the Constitution, Commonwealth grants to Councils may be invalid, and the proposed change to section 96 would add Councils to the States as legitimate recipients of Commonwealth financial grants.
The minimalist referendum question was passed by the Commonwealth Parliament this year, passing the Senate on 25 June 2013. Liberal and Labor both gave support (although 7 Coalition Senators broke party lines to vote against it, and a dozen Parliamentarians in both houses abstained). With Julia Gillard as Prime Minister, the referendum question was touted for the former election date of 14 September.
Bi partisan support appeared be in place, a vital factor for the success of any referendum question in Australian politics. The States, in different degrees, are opposed to the question and have been urging a ‘No’ vote throughout.
Mr. Abbott, the Leader of the Opposition wrote to the Prime Minister on 17 June asking that equal funding be given to both the ‘Yes’ and ‘No’ cases. Previously the Government had set $10 million for the ‘Yes’ case and $500,000.00 for the ‘No’ case.
In the absence of agreement on funding, Mr Abbott urged the public to vote ‘No’ if they didn’t understand the referendum question.
The replacement of Ms Gillard by Mr Rudd and the possibility of a new election date had put the issue under a cloud. Any ambiguity has now been resolved: there will be no referendum question at this election.
Previous attempts to give Councils Constitutional recognition
To amend the Constitution a referendum question needs to gain a majority of votes overall, as well as the majority support of the States. A similar question to the one proposed for 2013 giving only financial recognition was put to the electorate in 1974 by the Whitlam Government. It gained 46.20% of the vote, and the majority vote in only one state, New South Wales.
In 1984 the Hawke Government put a wider ranging question that would have given local government recognition as a third tier of government. This achieved only 33.62% of the vote nationwide, and the majority support in no single state.
In both cases, the Opposition opposed the amendment.
Where to now?
Technically Labor, Liberal and the Greens are all on record as being in favour of the ‘Yes’ case for an amendment to section 96 of the Constitution to add Councils as the object of Commonwealth grants. Legislation to that effect has passed, and can be put before the nation in the near future.
Historically, referendum questions fail without both major parties support. That support exists on paper, so if the question were put now it should pass.
While all parties pay lip service to the principle that voters should be given proper time and information to consider the proposal, the reality is that no one is going to put a referendum question before the nation outside of a general election.
Whether it is 7 September 2013 or some other election, the issue of Constitutional recognition for local government will always be overshadowed by the political issues that dominate the nation at the time of a general election.
Arguments that the ‘Yes’ and ‘No’ cases should be financed equally is also a nonsense. State Governments are intractably opposed to an amendment which will allow the Federal Government to directly channel funds to Councils without first having to syphon the money through State Departments. Look at the advertising on any State Government web site to see how much money and effort is being diverted by State Governments to kill off the referendum. As an example, take a look at the Victorian Department of Planning and Community Development web site here. Millions have already been invested in the ‘No’ case before a question was ever set by State Governments.
The Prime Minister has promised to look at the issue in ‘the next term’. Whether he has a next term, and whether this is a ‘core’ promise or not is yet to be seen.