Constitution Alteration (Local Government) Bill 2013
House of Representatives
5 June 2013
I rise to strongly support the Constitution Alteration (Local Government) 2013, and I do so as the Chair of the former Select Committee on Constitutional Recognition of Local Government and as a former Deputy Mayor of Blacktown City Council, the most populous local government area in New South Wales.
The road to financial recognition of local government has been long and it has been hard, but it has gained momentum in recent years due to a number of factors. These include, but are not limited to, a number of High Court decisions, which have in themselves cast some doubt on direct Commonwealth funding to certain entities. These cases include those of Pape and Williams, which I will explore later, which have placed some uncertainty around the way the Commonwealth can and does fund our local communities, including the roads, libraries, childcare centres and sporting facilities built and maintained by local councils and shires across Australia.
In local government circles and, certainly, in the wider community and amongst people who are interested in issues of constitutional reform, this issue has been on the agenda for decades. Anyone with a local government background would know this. The Independent Expert Panel on Constitutional Recognition of Local Government, chaired by the Hon. James Spigelman AC, QC, was appointed in August 2011 by the Australian government to consult with the community on whether Australia’s Constitution should be changed to include local government. It reported to government in December 2011.
The expert panel did two very important things. Firstly, it specifically recommended that recognition of local government in the Constitution should take the form of financial recognition. It expressly ruled out other forms of recognition, such as symbolic recognition, or recognition through federal cooperation, which were two other forms of recognition that were explored. Secondly, the expert panel recommended the form of words that should be added to section 96 of the Constitution, which are:
… or to any local government body formed by State or Territory legislation …
This means that the proposal would change section 96 to read:
… the Parliament may grant financial assistance to any State or to any local government body formed by State or Territory legislation on such terms and conditions as the Parliament sees fit.
Following on from the work of the expert panel, the Joint Select Committee on Constitutional Recognition of Local Government, established under the unanimous remit of this place, was established by the parliament on 1 November 2012, and received full membership on 28 November 2012.
The committee assessed the likelihood of success of a referendum on financial recognition, amongst other things, and in March this year the committee handed down its final report, making one recommendation that:
Taking the major finding into consideration, the Committee recommends that a referendum on the financial recognition of local government be put to Australian voters at the 2013 federal election.
Finally, on 9 May this year, the Prime Minister announced that the government is planning to hold a referendum on 14 September to recognise local government in our Constitution. The government has proposed wording based on the wording suggested by the expert panel, and subsequently endorsed by the committee.
The issue then arises: why vote ‘yes’? At the time of drafting the Constitution, local governments were not included in the section 96 Commonwealth funding head of power. The financial arrangements that were outlined in the Constitution over 100 years ago reflected the financial arrangements that existed at that time. The colony governments, soon to become state governments, were relatively independent and guarded that independence jealously. From a financial perspective they held the majority of the revenue-raising ability compared to the Commonwealth. Over time, this situation has of course changed. The Commonwealth is now the main revenue raiser in the nation and distributes its revenues to the states directly, as well as to local community and other projects, which includes local government. The Commonwealth has been providing substantial funds to local government for over two decades or, indeed, over four decades if you include factors such as the Regional Employment Development Scheme, which began in the 1970s.
What has been common practice for the benefit of local communities should indeed be recognised in the Constitution. This was a key issue that was considered in the joint select committee process. We heard from a variety of constitutional experts, including Professor Anne Twomey, Professor George Williams, Professor Alexander Brown and the Chair of the Legal Practice Section of the Law Council of Australia, Ms Maureen Peatman, on whether these forms of funding could be at risk. The committee also heard from Mr Ronald Williams, who brought the school chaplains case before the High Court, which found, amongst other things, that funding by the Commonwealth of the school chaplaincy program was unconstitutional. As noted by the committee in its preliminary report, the High Court’s decision in that case was likely to bolster the confidence of people willing to challenge the Commonwealth on constitutional grounds.
As was noted in the initial report, the question arose as to whether it would not be a matter of ‘if’ but ‘when’ the presently understood ability of the Commonwealth to fund local government would or could be struck down. It was also noted in that interim report that those High Court decisions did create some uncertainty with regard to ongoing direct funding of programs such as Roads to Recovery, with some experts appearing before the committee giving views that it would most likely be found unconstitutional.
As all members would be aware, in response to this case the parliament passed remedial legislation, the Financial Framework Legislation Amendment (No. 3) Act, in June 2012 to remedy the decisions arising from these cases. Importantly, the reason I mention this is that, from the evidence given to the committee by Mr Williams, it was quite obvious that he expected to take these issues back to the High Court and again challenge the school chaplaincy program on constitutional grounds. As he said, ‘While I was listening to parliament live’—on the financial framework legislation amendment debate—’I made my decision that we must take this back to the High Court.’
In light of all this evidence brought before the committee, we were determined to make an evidence based decision, and that we did. While opinions for and against the referendum varied, the 173 submissions from local government bodies and seven from local government associations were resoundingly in favour of holding a referendum to effect financial recognition by amending section 96 of the Constitution. The issues of constitutional cases are not, I believe, the most compelling reason to support this bill. As I mentioned previously, the role of local government has evolved dramatically over the past few decades, and a big part of that is the changing nature of the federal/local government dynamic. As someone whose first experience in public office was as a local councillor, I find few things give me greater satisfaction than delivering on things that make a tangible difference to people’s lives, such as a new sporting field, a new playground, a new girl guides hall and even a new long-jump pit. That is because financial recognition of local government goes to the very heart of what it means to be a federated nation and people’s expectations of what their government should provide for local communities.
In my local community this government has partnered with local councils to achieve great outcomes and I will just name a few: $7 million to Blacktown City Council for the Roads to Recovery program from 2009 to 2410; $450,000 to upgrade to the CV Kelly Park, in Girraween in Holroyd council’s area, which has been welcomed greatly by the local community including the Girraween Little Athletics Association and many other sporting groups; $250,000 to upgrade International Peace Park in Seven Hills specifically for the benefit of Seven Hills Junior Rugby League Club and their clubhouse; and $4.5 million for the upgrade of Burdekin Road in Quakers Hill. And I am pleased to be on a unity ticket with the Liberal Mayor of Blacktown, Councillor Len Robinson, who has said on the issue of financial recognition of local government and the proposed referendum:
If we are not recognised in the Constitution, we won’t have access to federal funding streams such as the Roads to Recovery and the Black Spot programs. This will cause a noticeable reduction in the work we are doing on our local roads.
This is an issue with widespread community support, and recent polling tells us that. It is also an issue with widespread political support, and I know that at the federal level.
I wish to acknowledge the presence in the chamber of the member for Ryan, a former councillor for the largest council area in Australia, that of Brisbane City Council, and also one of the other speakers on the list, the member for Parkes, who has a great recognition of the important role federal funding plays in his area, particularly when it comes to regionally focused funding programs. I also welcome the Leader of the Opposition’s support for constitutional recognition of local government and I encourage him to lobby some of his state colleagues on the matter. In my home state of New South Wales, Premier O’Farrell’s government once did support constitutional recognition, when they were in opposition. Since coming to power, unfortunately, they have walked away from this.
As noted by the committee, and I think this is a very important thing to address, the support of the states would greatly enhance the prospects of the referendum’s success. I would encourage all members of this place and all state members of parliament to campaign with their local councils in support of this. Local councils expressed their great support to the committee and I am reminded of the evidence provided by the Mayor of Mount Isa, the Hon. Councillor Tony McGrady AM, who told the committee:
… the reality is that any politician who came out against this proposal would have to answer to his or her peers. I am quite confident that a campaign led by local councils would guarantee support for and the success of this referendum.
As I mentioned, in my local community this federal government has worked with local governments to achieve some fantastic outcomes for residents. I do fear that outcomes are at risk in the future, whether or not in the immediate future but certainly in the long-term future, unless this referendum is successful. Since 2009 the federal Labor government has provided $2,896,500 to local councils in my electorate to fund a variety of projects. In addition to those I have mentioned, they include road upgrades, playground upgrades, sporting upgrades and much more.
I know there is a campaign for the ‘no case’ underway. One of the things that I have seen mentioned in that no case is the issue of funding. I think that there are three important points to note in the issue of funding, and again I would acknowledge the member for Ryan who raised the issue of civics education in this. The three things I think we should be aware of are: firstly, it is the fact that if there is a no vote in either house by a member it would trigger the requirement for the Electoral Commission to produce both the yes and the no pamphlets, which will go out for any referendum. There is also the question of funding for partisan cases. It is always a government decision on the proportion of funding that would be given to the yes and no cases, but this is always informed and assisted by the vote in the parliament on the matter, which I think is very appropriate.
In addition, there is a national awareness education campaign so that people are aware of this proposed Constitutional reform, what is happening, what it would actually propose and what it would actually mean. We live in a democracy. People can make up their own minds about whether to vote yes or no, but I think that it is very important for people to know the facts about these issues, and I am sure that no-one in this place would disagree with that.
In conclusion, I would like to note that unless specific programs are supported by a head of power in the Constitution, then funds would need to be channelled through the states and through the states only if they are to reach local communities. I am concerned that any flexibility that the Commonwealth and local government enjoy could potentially be lost in the future. As I have said, I think that is a factor and it is certainly the evidence that we took in the joint select committee. It was the evidence that we heard. But more importantly, I think that it is very important to recognise that this is a modest change. We are recognising that we have three tiers of government in 2013 and we have had three tiers of government and of partnering between the Commonwealth tier and the local tier for a very long time. We need to recognise that our Constitution is a living entity. I think that it is important for the community to be ready to talk about the Constitution again. Sometimes we do it with regard to campaigns that have been often on the agenda and we need to remember that the last time we actually voted in a referendum was in 1999 on the issue of an Australian head of state. At that time, we did not have the same mechanisms that are available to us today to disseminate information, to conduct campaigns and to conduct them more quickly, and to involve so many more people. The advent of new technology since 1999, quite frankly, is beyond belief. I think that the more people we engage with, the more people we can let know about the relationships and partnerships enjoyed between the federal and local level that are important to our everyday lives, the more that people will come to understand how important it is to vote in this yes case. So I am very pleased to support this motion before the parliament and for everyone to be aware and to have their say and make an informed choice on this matter on 14 September.