Reconsidering recognition

It may seem odd that the referendum is being promulgated by a Labor Government when it is the conservative side of politics that is usually more associated with local government. However, it is consistent with the history of the issue.

There have been two previous referendums with proposals to refer to local government in the Constitution, both under Labor governments; firstly by Whitlam in 1974 and later by Hawke in 1988.

The Whitlam Government put four referendum proposals to the public in 1974 using the deadlock provisions which allow for a referendum to go to a vote without Senate authorisation. One proposal dealt with direct Commonwealth funding to local governments. Specifically it asked for support for:

• a new Section 51(ivA) allowing the Commonwealth to make laws with respect to "the borrowing of money by the Commonwealth for local government bodies." and
• a new Section 96A to enable that "the Parliament may grant financial assistance to any local govenrment body on such terms and conditions as the Parliament thinks fit.

As with the other three questions, the Yes vote got a slender majority in NSW but failed in all other states. The loss, at least in part, can be attributed to the strident campaign of the Opposition. This hostility was not surprising given the deadlock over the legislation. Indeed the Opposition Leader, Billy Sneddon, promised to "oppose this referendum violently" and "do all they can do to defeat the referendum if it is held." Channeling Sir Winston Churchill, the Nationals Leader, Doug Anthony, argued that the intention of the measures were to destroy the States, that they "would be like cut roses in a vase - fair to be-hold but doomed to die." In this way federal constitutional recognition of local government was characterised by opponents not as a decentralist proposition, but as one component of a centralist agenda towards a unitary system of government.

The defeat at the polls put the issue off the agenda, but not for long. In 1988 the Hawke Government put four proposals to referendum. One of which sought to provide democratic recognition for local government through a new Section 119A:

Each State shall provide for the establishment and continuance of a system of local government, with local government bodies elected in accordance with the laws of a State and empowered to administer, and make by-laws for, their respective areas in accordance with the laws of the State.

Such an amendment would have been largely symbolic, having no specific practical, functional or financial aspects. The proposal returned a high No vote and failed to carry in any state. The day prior to the poll the Australian's Paul Kelly described the Opposition's campaign, led by Peter Reith, as 'based on ignorance and distortion' and having 'obviously left many sincere and well-informed people wary and confused.'

The present danger is that the Opposition could oppose the issue to politicise it into a referendum on the Prime Minister. We need clear confirmation from the Opposition that they will support a referendum next year.

If we were drafting the Constitution now, it would seem quite odd to disregard one whole tier of government. It is a gaping hole at the heart of our governance blueprint. The lack of a general power to fund local government, long alluded to in constitunal law circles, and now confirmed and highlighted by recent High Court cases demonstrates the need for recognition.