Reconsidering recognition

The Australian Constitution has served us well for over a century. It is our nation's blueprint; establishing our structures of government and setting out the relationships between institutions. Important and stabilising as it is, it is not, and should not, be etched in stone. As circumstances develop or society's views change, alterations, amendments and additions will be required.

Section 128 provides that any changes to the document cannot proceed without a referendum. The drafters deliberately set the bar very high for such amendments; requiring a double majority; an overall national majority and separate majorities in a majority of states. Of the 44 referendums held since federation, 36 have been rejected. There has not been a successful one since 1977. However, the difficulties in amending the document should not deter us from seeking to address deficiencies at the heart of our system of governance.

The complete lack of reference to local government in our Constitution is a stark deficiency in our model of federalism and one that is likely to cause difficulties as alluded to in the recent High Court decision of Williams and the earlier decision of Pape.

Constitutional change is required to adequately reflect Australia's system of government and to ensure funding sources for services. This would be a practical and effective change; not merely symbolic.

Since federation in 1901 the roles and responsibilities of local government have broadened significantly. Jurisdiction now encompasses areas such as planning, regional and economic development, human services, recreation and environmental management.

The first official local council in Australia was formed in October 1840 In Adelaide. The 564 councils across the country are extremely diverse, ranging in size from a square kilometre (Shire of Peppermint Grove, WA) to almost 380,000 square kilometres (Shire of East Pilbara, WA), a number have populations of a few hundred whilst Brisbane has more than a million.

In anticipation of a referendum on the issue, an expert panel, chaired by former NSW Chief Justice James Spigelman, was established by the Federal Government to consult with the community and report on options. The panel looked into four types of recognition; financial recognition, democratic recognition, symbolic recognition and recognition through federal cooperation. The most compelling case of these is for financial recognition which in itself also provides some level of symbolic and cooperative recognition.

This is also the most likely to achieve a successful outcome as the State Governments are largely against democratic recognition, valuing their power to dismiss poorly-performing or corrupt councils and install administrators and the Federal Opposition has limited its explicit support to financial recognition.

A number of programs have been created by the Federal Government through which grants are made directly to local councils. These include the Roads to Recovery Program, the Regional DevelopmentAustralia Fund, the Regional and Local Community Infrastructure program and the Low Carbon Communities program. The decisions in Pape and Williams have put the constitutional validity of these into question. In the absence of enabling legislation, the Commonwealth does not have the power to directly fund local governments. This is why financial recognition is important.

The Commonwealth is able to fund councils through grants, such as the Financial Assistance Grants, to the States under Section 96 of the Constitution. Rather than providing direct grants this is the route by which the majority of Commonwealth funds are provided to councils. Whilst this mechanism is constitutionally and administratively workable it is far from the ideal. It creates a bottleneck for funds, distances the Commonwealth from the programs it is seeking to implement, fails to recognise local government as a legitimate third tier of government, is potentially inefficient and is not as likely to develop a positive collarborative relationship. If this situation can be fixed through a referendum it should be.

The difficulty in getting a referendum passed in the absence of bipartisan support is well known. "If you don't know, vote no" is an enduring political adage where voting is compulsory but making an informed decision is not.

Whilst it has been assumed and confirmed in the recent past that there is cross party support for recognition, there are ominous signs emerging that the political culture in the federal arena may be hollowing out this bipartisanship. At the 2012 Federal Liberal Council a motion was passed opposing the referendum, and there are elements within the party room which are not enthusiastic about supporting the Government's stance on the issue.