The referendum, as passed by Parliament, is often described as a referendum on ‘local government recognition’, but this is not really accurate. It does not recognise the status of local government, grant it powers or give it any form of protection.
The only ‘recognition’ will be the inclusion of the words ‘any local government body formed by a law of a State’ in s 96 of the Constitution. Given the High Court’s recent penchant for identifying the ‘essential elements’ of constitutional terms (especially ‘courts’), it is conceivable that it might define a ‘local government body’ as one that is democratically elected and cannot be replaced by administrators. This is but one of the many unknowns.
The intent of the amendment, however, is to allow the Commonwealth to fund local government directly. Presently, most Commonwealth funding to local government occurs indirectly, through s 96 grants to the States, on the condition that all the money is distributed to local government. This is done by a formula under which 30 per cent is distributed according to population and the rest is allocated by local government grants commissions according to need. About a fifth of Commonwealth funding to local government is provided directly — including the ‘Roads to Recovery’ program. This was initiated by the Howard government, but its constitutional validity is doubtful following the Pape and Williams cases.
Local government is campaigning for this constitutional amendment because it is concerned that it will lose this money if these grants are struck down as unconstitutional. However, exactly the same amount of money can simply be given to local government through the existing (and undoubtedly valid) s 96 grant mechanism.
So why change the Constitution at all if there is already a valid way for the Commonwealth to fund local government? The answer seems to be a belief that the Commonwealth will give more money if it can get more electoral kudos for it by funding programs and projects directly. Even if this is true (and budgetary constraints might undermine it), is it really in the public interest for the Commonwealth to fund pet projects in marginal seats, or would it be better for such money to be distributed more fairly through local government grants commissions according to need?
The High Court in Williams put paid to most Commonwealth pork-barrelling opportunities by requiring legislation and a head of power to support them. This referendum would open the possibility for the Commonwealth to continue pork-barrelling through grants to local government. This may well prove advantageous for those wanting new surf-clubs in marginal seats, but not much help for those with the misfortune to live in safe seats where votes are harder to buy. So how you decide to vote might depend upon where you live.
For those wanting more information to help make up their minds, the Constitutional Reform Unit at the University of Sydney has done its best to write an objective Yes/No case, as well as some FAQs to give background information. The information is at http://sydney.edu.au/law/cru/lgr.shtml.
ANNE TWOMEY is a Professor of Constitutional Law at the University of Sydney.
© 2013 Anne Twomey