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The Referendum that Wasn't: Constitutional Recognition of Local Government and the Australian Federal Reform Dilemma

Published online by Cambridge University Press:  01 January 2025

A J Brown  and
Paul Kildea
A J Brown
Affiliation:
Public Policy and Law, Centre for Governance and Public Policy, Griffith University; and Commonwealth Government's Expert Panel on Constitutional Recognition of Local Government (2012)
Paul Kildea
Affiliation:
UNSW Law School, and Referendums Project, Gilbert + Tobin Centre of Public Law
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Abstract

In 2010, the Commonwealth government proposed Australia's third attempt to give federal constitutional recognition to local government. In 2013, the government secured the passage through Parliament of a Constitution Alteration but, due to political events, and amid much controversy, the proposed amendment was not put to the people. This paper examines the merits and prospects for success of the proposed reform, with an eye to lessons for the future of local government's place in the federal system. It argues that the legal and constitutional cases for the alteration were strong, but limited, and poorly contextualised, theorised and articulated. We use public opinion evidence to conclude that had it proceeded, the referendum result would probably have been a third failure. These lessons are important for ongoing debate over sub-constitutional and constitutional reform to Australian intergovernmental relations, including questions of federal financial redistribution at the core of the proposal. Overall, the events of 2013 reinforce arguments that reforms to the position of local government, while important, should only be pursued as part of a holistic package of federal reform and renovation; and that more robust deliberative processes and principles must be adhered to before again attempting any constitutional reform.

Type
Article
Information
Federal Law Review , Volume 44 , Issue 1 , March 2016 , pp. 143 - 166
Copyright
Copyright © 2016 The Australian National University

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Footnotes

The authors thanks Jacob Deem for considerable research assistance associated with this article, and George Williams for valuable comments on a draft.

References

1 See Constitutional Reform Unit, University of Sydney Law School, Local Government Referendum (9 August 2013) <http://sydney.edu.au/law/cru/lgr.shtml>. The election date was set on 4 August 2013. The window of a maximum of six months for the referendum to be submitted to electors passed in December 2013.

2 Cheryl Saunders, ‘Reflections on the Local Government Referendum That Wasn’t’ on University of Melbourne Law School, High Court Blog (23 September 2013) <http://blogs.unimelb.edu.au/opinionsonhigh/2013/09/23/saunders-local-government-referendum/>.

3 The Australian Constitutional Values Surveys (ACVS) were conducted by Newspoll for Griffith University and partners, of stratified random samples of adult residents via stand-alone twenty-minute telephone interviews in May 2008 (n=1211), March 2010 (n=1100) and October 2012 (n=1219). The ACVS was funded in 2008 and 2012 by the Australian Research Council (ARC Discovery Project 0666833) and in 2012 by Griffith University and the University of New South Wales. See Griffith University, Federalism <http://www.griffith.edu.au/business-government/centre-governance-public-policy/publications/federalism>.

4 See Expert Panel on Constitutional Recognition of Local Government, Commonwealth of Australia, Final Report (2011). See especially at 19–22, app C.

5 Department of the Prime Minister and Cabinet, Australian Government, Reform of the Federation White Paper <https://federation.dpmc.gov.au/>.

6 The Constitution Alteration (Local Government Bodies) 1974 (Cth) ('An Act to alter the Constitution to enable the Commonwealth to borrow money for, and to grant financial assistance to, local government bodies’) proposed a s 96A (‘The Parliament may grant financial assistance to any local government body on such terms and conditions as the Parliament thinks fit’) and also proposed to insert s 51(ivA) (‘The borrowing of money by the Commonwealth for local government bodies’).

7 Brown, A J, ‘In Pursuit of the “Genuine Partnership”: Local Government and Federal Constitutional Reform in Australia’ (2008) 31 UNSW Law Journal 435Google Scholar; McGarrity, Nicola and Williams, George, ‘Recognition of Local Government in the Australian Constitution’ (2010) 21 Public Law Review 164.Google Scholar

8 See Dean Jaensch, ‘Governance, Recognition, Status, Authority: The Possibilities for Local Government’ (Speech delivered at the National General Assembly of Local Government, Canberra, November 2004); Cheryl Saunders, ‘Constitutional Recognition of Local Government’ (Speech delivered at the National General Assembly of Local Government, Darwin, November 2007).

9 Local Government Constitutional Summit, ‘Constitutional Recognition of Local Government Summit Declaration’ (11 December 2008) <http://alga.asn.au/site/misc/alga/downloads/constit-rec/Final_Declaration.pdf>. See McGarrity and Williams, above n 7, 170.

10 ‘[T]o ensure the quality of planning and delivery of services and infrastructure provided to all Australians, and the ongoing sustainability of local government, any constitutional amendment put to the people in a referendum by the Australian Parliament (which could include the insertion of a preamble, an amendment to the current provisions or the insertion of a new Chapter) should reflect the following principles: The Australian people should be represented in the community by democratically elected and accountable local government representatives; The power of the Commonwealth to provide direct funding to local government should be explicitly recognised; and If a new preamble is proposed, it should ensure that local government is recognised as one of the components making up the modern Australian Federation’: Local Government Constitutional Summit, above n 9.

11 Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 (‘Pape’).

12 Williams v Commonwealth (2012) 248 CLR 156 (‘Williams No 1’).

13 ‘Agreement, Australian Greens and Australian Labor Party’ (1 September 2010) cl 3(f).

14 Expert Panel on Constitutional Recognition of Local Government, above n 4, 24.

15 On the relationship between options see McGarrity and Williams, above n 7; A J Brown and Ron Levy, ‘A Tale of Two Questions? An Argument for Coordinated Constitutional Reform’ (2011) 7(25) Indigenous Law Bulletin 31.

16 Expert Panel on Constitutional Recognition of Local Government, above n 4, 8–9.

17 Ibid.

18 Ibid 55.

19 See Brown, ‘In Pursuit of the “Genuine Partnership”’, above n 7, 446.

20 Victorian Government, Submission No 654 to Expert Panel on Constitutional Recognition of Local Government, 2, quoted in Expert Panel on Constitutional Recognition of Local Government, above n 4, 11.

21 Expert Panel on Constitutional Recognition of Local Government, above n 4, 2.

22 George Williams and David Hume, People Power: The History and Future of the Referendum in Australia (UNSW Press, 2010) 244–6.

23 See also Phillip Hudson, ‘Abbott Government Kills Off Local Government Referendum’, Herald Sun (Online), 31 October 2013 <http://www.heraldsun.com.au/news/abbott-government-kills-off-local-government-referendum/story-fni0fiyv-1226750784515>.

24 Australian Local Government Association, Welcome (30 October 2013) ALGA Constitutional Reform Campaign Website <http://www.councilreferendum.com.au/>. See also ibid.

25 Even after State constitutional recognition, local government remains the ‘lame duck of Australian politics, limping along in a battle for survival … in many cases not being able to do much for those injured by the shifting foci of economic activity and wealth creation’: Daly, Maurice, ‘The Challenges for Local Government in the 21st Century’ in Pritchard, Bill and McManus, Phil (eds), Land of Discontent: The Dynamics of Change in Rural and Regional Australia (UNSW Press, 2000) 195, 216Google Scholar. On the broader pressures for recognition that this creates, see Aulich, Chris and Pietsch, Rebecca, ‘Left on the Shelf: Local Government and the Australian Constitution’ (2002) 61(4) Australian Journal of Public Administration 14CrossRefGoogle Scholar; Brown, A J, ‘Subsidiarity or Subterfuge? Resolving the Future of Local Government in the Australian Federal System’ (2002) 61(4) Australian Journal of Public Administration 24.CrossRefGoogle Scholar

26 See Twomey, Anne, ‘Always the Bridesmaid — Constitutional Recognition of Local Government’ (2012) 38(2) Monash University Law Review 142, 146–51.Google Scholar

27 James Spigelman, ‘Constitutional Recognition of Local Government’ (Speech delivered at the Local Government Association of Queensland 116th Annual Conference, Brisbane, 24 October 2012) <http://councilreferendum.com.au/site/misc/alga_cr/downloads/SPEECHES_TRANSCRIPTS/LOCAL_GOVERNMENT.pdf>.

28 See, eg, House of Representatives Standing Committee on Economics, Finance and Public Administration, Parliament of Australia, Rates and Taxes: A Fair Share for Responsible Local Government (2003).

29 Victoria v Commonwealth (1975) 134 CLR 338 (‘AAP Case’).

30 McGarrity and Williams, above n 7, 186.

31 See Chordia, Shipra, Lynch, Andrew and Williams, George, ‘Williams v Commonwealth — Commonwealth Executive Power and Australian Federalism’ (2013) 37 Melbourne University Law Review 189Google Scholar; Hume, David, Lynch, Andrew and Williams, George, ‘Heresy in the High Court? Federalism as a Constraint on Commonwealth Power’ (2013) 41 Federal Law Review 71.CrossRefGoogle Scholar

32 Twomey, ‘Always the Bridesmaid’, above n 26, 153.

33 Financial Framework Legislation Amendment Act (No 3) 2012 (Cth).

34 Chordia, Lynch and Williams, above n 31, 218.

35 Williams v Commonwealth [No 2] (2014) 252 CLR 416 (‘Williams No 2’).

36 Ibid [38]–[51]. The Court dismissed Commonwealth arguments that the legislative scheme, insofar as it supported payments made as part of the NSCP, was a law with respect to ‘the provision of … benefits to students’ under s 51(xxiiiA) of the Constitution; nor did it amount to a law with respect to trading and financial corporations under s 51(xx).

37 Ibid [30].

38 Financial Framework (Supplementary Powers) Act 2014 (Cth).

39 Andrew Lynch, ‘Williams v Commonwealth (No 2)’ (Paper presented at Constitutional Law Conference, Art Gallery of NSW, Sydney, 13 February 2015) <http://www.gtcentre.unsw.edu.au/events/2015-constitutional-law-conference-and-dinner>. See also Anne Twomey, ‘Déjà Vu — The Commonwealth's response to the Williams Case’, Constitutional Critique (3 July 2014) <http://blogs.usyd.edu.au/cru/2014/07/deja_vu_the_commonwealths_resp_1.html>; Anne Twomey and Robert Carling, Centre for Independent Studies, Public Money; Federal–State Financial Relations and the Constitutional Limits on Spending Public Money (2014).

40 Spigelman, above n 27.

41 See Joint Select Committee on Constitutional Recognition of Local Government, Parliament of Australia, Final Report (2013), 9–13 [2.19]–[2.34].

42 Senate Committee on the Reform of the Australian Federation, Parliament of Australia, Australia's Federation: an Agenda for Reform (2011). See generally Kildea, Paul, Lynch, Andrew and Williams, George (eds), Tomorrow's Federation: Reforming Australian Government (Federation Press, 2012).Google Scholar

43 See Liberal Party of Australia, The Coalition's Policy to Boost Productivity and Reduce Regulation, Election Policy Document, July 2013, 20 <http://www.liberal.org.au/boosting-productivity-and-reducing-regulation>.

44 Department of the Prime Minister and Cabinet, Reform of the Federation White Paper: A Federation for Our Future (Issues Paper 1, September 2014) v.

45 See Expert Panel on Constitutional Recognition of Local Government, above n 4, 6.

46 As quoted by Michael Kenny, ‘Referendum Plan “Could Weaken State Governments”’, SBS World News Australia Radio (online), 13 May 2013 <http://www.sbs.com.au/news/article/2013/05/13/referendum-plan-could-weaken-state-governments>.

47 Saunders, ‘Reflections on the Local Government Referendum That Wasn’t’, above n 2. See also Cheryl Saunders, ‘Recognising Local Government needs Rethink’, The Age, Sydney Morning Herald, 22 May 2013 <http://www.smh.com.au/federal-politics/political-opinion/recognising-local-government-needs-rethink-20130521-2jyu9.html#ixzz2sDtSmB1I>.

48 See Constitutional Reform Unit, ‘Local Government Referendum 2013: Alternative Yes/No Case’, University of Sydney Law School, 23 May 2013; Gilbert & Tobin Centre of Public Law, 2013 Local Government Referendum — FAQs, University of New South Wales <http://www.gtcentre.unsw.edu.au/resources/referendums/2013-local-government-referendum-faqs>.

49 See Brown, ‘In Pursuit of the “Genuine Partnership”’, above n 7.

50 Saunders, ‘Reflections on the Local Government Referendum That Wasn’t’, above n 2.

51 Ibid.

52 George Williams, ‘School Chaplains Ruling Alters Concept of Federal Funding’, Sydney Morning Herald, 21 June 2012 <http://www.smh.com.au/federal-politics/political-opinion/school-chaplains-ruling-alters-concept-of-federal-funding-20120620-20oet.html#ixzz2rwwXQAn1>.

53 See ‘Australian Federal Reform: An Action Plan’ (Outcomes Paper, Sir Samuel Griffith Legacy Series 2013 Discussion Forum, Griffith University). Public concern over the inadequacy of intergovernmental collaboration, rising significantly over the 2008–2012 period: while 92% of participants of the 2012 ACVS saw collaboration between levels of government as a desirable attribute of federalism, only 34% felt that the current system achieves it: see A J Brown, ‘Australia's Federal Future: The People's View’ (Paper for the Sir Samuel Griffith Legacy Series 2013 Discussion Forum, October 2013).

54 Hume, Lynch and Williams, above n 31, 3.

55 See Gilbert & Tobin Centre of Public Law, Submission No 7 to Select Committee on Reform of the Australian Federation, Inquiry into Reform of the Australian Federation, 20 August 2010; Anne Twomey, Submission No 32 to Senate Select Committee on Reform of the Australian Federation, Inquiry into Reform of the Australian Federation, 29 August 2010; Gilbert & Tobin Centre of Public Law, Submission No 63 to Expert Panel on Constitutional Recognition of Local Government, Inquiry into Constitutional Recognition of Local Government, 1 November 2011.

56 Quoted in Adam Creighton, Christian Kerr and Mark Coultan, ‘Vote to Bypass States Doomed: Council Support Crumbles’, The Australian (online), 15 May 2013, 15–16 <http://www.theaustralian.com.au/national-affairs/state-politics/vote-to-bypass-states-doomed/story-e6frgczx-1226642499298>.

57 Ibid. See also John Roskam, ‘Referendum a “Democratic Disaster”’, Australian Financial Review, 17 May 2013, 42; Constitutional Reform Unit, ‘Local Government Referendum 2013: Alternative Yes/No Case’, above n 48.

58 Saunders, ‘Reflections on the Local Government Referendum That Wasn’t’, above n 2.

59 Saunders, ‘Recognising Local Government needs Rethink’, above n 47.

60 This was a Nielsen poll conducted for the Australian Financial Review (n=1400): Phillip Coorey, ‘Poll: Referendum on Local Government Likely to Pass’, Australian Financial Review, 20 May 2013, 3.

61 Roy Morgan, ‘Local Government Referendum Set to Fail’, Finding No 4993, 26 June 2013 <http://www.roymorgan.com/findings/local-government-referendum-june-26-2013-201306260321>. N=1146, June 21–23, 2013.

62 Ibid. ‘The last time the question on Local Government recognition was put to a referendum in September 1988 the Morgan Poll showed support for the question dropped as Australians learnt more about it. The Morgan Poll showed support for the question was 60% on July 30/31, 1988; 59% on August 6/7, 1988; dropping to 50% on August 20/21, 1988 and only 33.62% of Australians voted yes’.

63 N Perry, ‘Local Council Referendum Put on Ice’, The Australian (online), 4 August 2013 <http://www.theaustralian.com.au/news/latest-news/local-council-referendum-put-on-ice/story-fn3dxiwe-1226691012405>.

64 Correspondence from Adrian Beresford-Wylie, CEO, Australian Local Government Association, to the authors, 27 February and 20 March 2014.

65 Stephen Bartos, ‘What Now for a Referendum on Local Government Recognition?’, Crikey (online), 8 August 2013 <http://www.crikey.com.au/2013/08/08/what-now-for-a-referendum-on-local-government-recognition/>.

66 Commonwealth, Parliamentary Debates, Senate, 19 June 2013, 3367 (Barnaby Joyce).

67 See Table 5 in Brown, ‘In Pursuit of the “Genuine Partnership”’, above n 7.

68 See ibid.

69 Expert Panel on Constitutional Recognition of Local Government, above n 4, 54.

70 Ibid 56. Survey conducted by Newspoll, September 2011, adults aged 18+ nationally who are eligible to vote (n=1478).

71 Morgan, above n 61.

72 Brown, ‘In Pursuit of the “Genuine Partnership”’, above n 7, 455. Importantly there was significant support, especially among supporters of constitutional recognition, for local government's roles and responsibilities to be set out in the Constitution itself rather than left to either of the other levels of government.

73 Morgan, above n 61.

74 Between 2008 and 2012, the ACVS recorded a 6.3% fall in the proportion of citizens who believe the current three-levelled system of government works well, from 67.8% to 61.5%, a statistically significant result (F (5, 3217) = 4.896, p = .002) along with other consistent results. See Griffith University, Australian Constitutional Values Survey 2012 Results Release 1 (17 November 2012) Federalism, Regionalism and Devolution <http://www.griffith.edu.au/federalism>; Brown, ‘Australia's Federal Future’, above n 53. For previous results, see Brown, A J, ‘Thinking Big: Public Opinion and Options for Reform of Australia's Federal System’ (2009) 4(1) Public Policy 30Google Scholar; Brown, A J, ‘Escaping Purgatory: Public Opinion and the Future of Australia's Federal System’ in Appleby, Gabrielle, Aroney, Nicholas and John, Thomas (eds), The Future of Australian Federalism: Comparative and Interdisciplinary Perspectives (Cambridge University Press, 2012) 365CrossRefGoogle Scholar; Brown, A J, ‘Measuring the Mysteries of Federal Political Culture in Australia’ in Kildea, Paul, Lynch, Andrew and Williams, George (eds), Tomorrow's Federation: Reforming Australian Government (Federation Press, 2012) 310.Google Scholar

75 Irving, Helen, To Constitute a Nation: A Cultural History of Australia's Constitution (Cambridge University Press, 1999) 212.Google Scholar

76 See Brown, ‘Australia's Federal Future’, above n 53; Imre Salusinszky, ‘Faith in Political Leaders Collapses’, The Weekend Australian (Sydney), 17 November 2012, 1; A J Brown, ‘Evolution Plan for a Workhorse: The Reform of Australia's Federal System Requires Much More Effort and Considerably Greater Clarity of Purpose’, Inquirer, The Weekend Australian (Sydney), 17 November 2012, 19; Ian McAllister, Juliet Pietsch and Adam Graycar, ‘Perceptions of Corruption and Ethical Conduct’ (ANUpoll Report No 13, Research School of Social Sciences, Australian National University, October 2012) 7 <http://www.anu.edu.au/anupoll>.

77 JWS Research, ‘Constitutional Recognition of Local Government’ (Research Presentation for ALGA, 24 February 2011) 35.

78 Expert Panel on Constitutional Recognition of Local Government, above n 4, 68; Local Government: Newspoll conducted for Expert Panel, adults aged 18+ nationally who are eligible to vote, September 2011 (n=1478); Remaining items: Australian Constitutional Values Survey 2 conducted for Griffith University by Newspoll, adults aged 18+ nationally, March 2010 (n=1100), see Brown and Levy, above n 15.

79 Williams and Hume, above n 22, 244–63.

80 See Cheryl Saunders, ‘Parliament as Partner: A Century of Constitutional Review’ (Research Paper No 3, Parliamentary Library, Parliament of Australia, 2000) 21–3.

81 The Expert Panel's membership of 18 included six current or former local government representatives, four parliamentary members (one each from Labor, the Coalition and Greens parties, and one Independent), and representatives from academia, trade unions and the community sector, and each State. See further Kildea, Paul, ‘Expert Panels, Public Engagement and Constitutional Reform’ (2014) 25 Public Law Review 33.Google Scholar

82 For a detailed assessment of the Panel's program of consultation, and a comparison with that of the Indigenous recognition Panel, see ibid.

83 Expert Panel on Constitutional Recognition of Local Government, above n 4, 68, 88.

84 Spigelman, above n 27, 5.

85 See Expert Panel on Constitutional Recognition of Indigenous Australians, Commonwealth of Australia, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel (2012) <http://www.recognise.org.au/wp-content/uploads/shared/uploads/assets/html-report/>.

86 Joint Select Committee on Constitutional Recognition of Local Government, Parliament of Australia, Preliminary Report (2013) 2.

87 Spigelman, above n 27.

88 Joint Select Committee on Constitutional Recognition of Local Government, Preliminary Report, above n 86, 3.

89 Joint Select Committee on Constitutional Recognition of Local Government, Final Report, above n 41, 3 [1.12].

90 Ibid 22 [3.19].

91 See Joint Select Committee on Constitutional Recognition of Local Government, Parliament of Australia, Sydney, 16 January 2013, 25–30; evidence to Joint Select Committee on Constitutional Recognition of Local Government, Parliament of Australia, Sydney, 20 February 2013, 26 (Felicity-Ann Lewis, President, Australian Local Government Association), quoted in ibid 24 [3.25].

92 Australian Local Government Association, Supplementary Submission No 89.3 to Joint Select Committee on Constitutional Recognition of Local Government, Parliament of Australia, 22 February 2013, 2, quoted in Joint Select Committee on Constitutional Recognition of Local Government, Final Report, above n 41, 22.

93 Anthony Albanese, ‘Funding Provided to Promote Public Debate about Constitutional Change’ (Media Release, 17 June 2013).

94 The proposal for funding proportionate to parliamentary support was noted by the Expert Panel (Expert Panel on Constitutional Recognition of Local Government, above n 4, 17), but rejected by the Joint Select Committee, stating its belief that ‘funding should be distributed to partisan campaigns on an equal basis, with both sides of the question receiving equal funding’: Joint Select Committee on Constitutional Recognition of Local Government, Preliminary Report, above n 86, 7 [1.39]; Joint Select Committee on Constitutional Recognition of Local Government, Final Report, above n 41, 26.

95 Sabra Lane, Is the Local Government Referendum as Good as Lost? (2 July 2013) The Drum <http://www.abc.net.au/news/2013-07-02/lane-local-government-referendum/4793956>.

96 Commonwealth, Parliamentary Debates, Senate, 19 June 2013, 3359 (George Brandis).

97 Commonwealth, Parliamentary Debates, Senate, 19 June 2013, 3424 (David Bushby).

98 Commonwealth, Parliamentary Debates, Senate, 24 June 2013, 3702 (Scott Ryan). Opposition leader Tony Abbott also wrote to the Prime Minister accusing the government of ‘trying to buy the result’ of the referendum, and that anything short of equal funding would put the ‘fairness’ of the process at risk: letter from Tony Abbott to Julia Gillard, 17 June 2013 <http://freedomwatch.ipa.org.au/2013/06/exclusive-abbott-tells-gillard-equal-funding-essential/>.

99 As quoted by Paul Osborne, ‘Council Referendum in Danger of Failing’, News.com.au (online), 2 July 2013 <http://www.news.com.au/breaking-news/national/council-referendum-in-danger-of-failing/story-e6frfku9-1226673258771#ixzz2XyrosjnP>.

100 Referendum (Machinery Provisions) Act 1984 (Cth) s 11(1).

101 This planned referendum was later abandoned.

102 Commonwealth, Parliamentary Debates, Senate, 6 December 1983, 3325 (Michael Townley); Commonwealth, Parliamentary Debates, Senate, 6 December 1983, 3320 (Noel Crichton-Browne); Commonwealth, Parliamentary Debates, Senate, 6 December 1983, 3323 (Brian Harradine).

103 For a detailed analysis of this issue, see Kildea, Paul, ‘Achieving Fairness in the Allocation of Public Funding in Referendum Campaigns’ (2016) 37 Adelaide Law Review (forthcoming).Google Scholar

104 See Paul Kildea, ‘Australia's Abandoned Local Government Referendum’ on United Kingdom Constitutional Law Association, UK Constitutional Law Blog (29 November 2012) <http://ukconstitutionallaw.org>.

105 House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, A Time for Change: Yes/No? — Inquiry into the Machinery of Referendums (2009).