Constitutional recognition update

“A key priority for Local Government is Constitutional recognition for Local Government,” said ALGA President Geoff Lake. “Such recognition would deliver pragmatic and effective change to how our three spheres of government can work together in the 21st century.”

With the Rudd Government’s commitment to consult with Local Government on a referendum proposal for Consitutional recognition and following on from the historic consensus reached last November at ALGA’s Constitutional Summit, Councillor Lake provided delegates with an update of what ALGA has been doing to drive this priority agenda.

Constitutional lawyers Professor George Williams and his colleague at the University of NSW, Nicola McGarrity, have prepared a technical paper setting out three possible proposals and the pros and cons of each. Former Senator and now Special Counsel for CPR Communications, Robert Ray, has been preparing a strategic framework to progress the case for a yes vote.

Councillor Lake said that it makes no sense that under current arrangements the ability of the Federal Government to provide direct funding to Local Government is not included in the Constitution.

“Currently the situation for FAGs funding requires an extra layer of bureaucracy, with the Federal Government making tied grants to the State and Territory Governments which are then passed on through their grants commissions to Local Government,” he said. “The ALGA Board is committed to pursuing this issue and this will be the biggest national campaign ALGA has taken on to date.”

Constitutional Lawyer Nicola McGarrity outlined the three options she and Professor Williams have drawn up.

Option one – symbolic recognition – has a major drawback in that it will be very difficult to get people to support something that is only symbolic.

Option two – institutional recognition – would involve the following:

• entrenchment of a system of Local Government within each
  State
• Local Government representatives must be directly chosen by
  the people
• only through an Act of Parliament can a council be dismissed
  or amalgamated, thereby providing debate and public airing of
  the issues
• that the three spheres of government should cooperate with each
  other on matters of public interest and Local Governments should
  be able to comment on proposed State or Federal laws so the
  interests of the Local Government are taken into account.

The third option – financial recognition – would enshrine the Federal Government’s ability to make grants directly to Local Government.

Under current provisions in the Constitution, Section 96 enables the Federal Government to make tied grants to the States, with this money earmarked for Local Government. This process of distribution via the State’s grants commissions is inefficient, with some $18 million lost through additional administration costs.

Under Section 81 the Federal Government can appropriate funds from consolidated revenue for the purposes of the Commonwealth. The Roads to Recovery grants to councils are made under this provision, but, the use of this section for this purpose has never been challenged.

The recent Pape case that challenged the right of the Federal Government to make the $900 stimulus payments to individuals, had it been successful, would have put this Local Government funding in doubt. It is therefore proposed that Section 96 be amended to include
the words, “to make grants to any State or Local Government body”.

An alternative would be to add a new section specifically relating to Local Government, giving it the same status as the States in regard to the Federal Government dealing with Local Government and Local Government issues.

Robert Ray told delegates that the best timing for a referendum would be between November 2011 and November 2012.

“The key is that whatever proposal is put to the people must be your model and not that of someone else,” Robert Ray said.

Although the track record for successful referenda is not good, he pointed to the fact that previously when the question of Local Government was put to the people in 1974 and 1988, the governments at the time were not popular and the proposals were also packaged with other unpopular changes.

Robert Ray said key issues to consider include:

• the nature of the proposal – he said it is important to go with a
  concrete proposal; people will vote no if they don’t understand,
  as would be the case with a vague preamble
• usually four proposals will be put up to justify the cost of the
  exercise, so look for partners, that is three other proposals
  to improve governance, such as four year terms but not more
  controversial reforms such as a Bill of Rights or a republic
• a referenda will not be put during the current downturn: at the
  cost of $80 million it is not likely to be put until 2012
• in drawing up the proposal, a Constitutional convention is costly
  so a Constitutional commission of eminent jurists is the best way
  to go rather than the Government doing it
• it is vital to have bipartisan support, or don’t waste your effort.

Robert Ray said the strategy to progress the yes case should begin with consciousness raising.

“Start with both Houses of Parliament, with your case underpinned by decent market research,” Robert Ray said. “Do your polling to establish parameters, then move to involving the media and think tanks to develop the yes case in the public domain.”

He said that the decision on which of the three options to run with should be made by April 2010.

“Argue your case with the public at large,” he said. “You cover every aspect of the nation – you already have direct contact with the voters – you need to get out and sell your proposition in every locality.

“I believe it is well worth having a crack at it. It is worth the effort to improve our system of government in the 21st century.

“Take on the case and win it.”