Opinion: Nick Minchin

For the third time in less than 40 years, the Federal Government is trying to persuade the Australian people that they should approve an amendment to the Australian Constitution relating to local government.

The ALP, having failed in 1974 and 1988 to change the Constitution, is trying again at the 14 September 2013 election to get support for a Constitutional Amendment on the issue of local government.

This time the ALP has the support of the Federal Coalition, so there is a chance it will be approved by a majority of voters in a majority of States.

It is also the case that voters are being led to believe that this proposed Constitutional Amendment is merely about “recognition”  of local government in the Constitution. However, the proposed amendment is not about “recognition” per se.

This third attempt by Labor to insert provisions relating to local government would give the Commonwealth Government the power to put any terms and conditions it liked on grants provided directly to local councils.

We are being told this is a sensible bit of Constitutional tidying up.

In fact it is a quite radical proposal which is a significant threat to the federal structure of our Constitution.

It will considerably increase the power of the Commonwealth vis-a-vis the States, by allowing the Commonwealth to bypass the States and to use local councils as agents of national policy.

Our Constitution works well because it puts in place a set of checks and balances on our government institutions and seeks to prevent undue concentration of power by splitting responsibilities between the Commonwealth and the States.

This proposal, in the words of eminent Constitutional lawyer Professor Cheryl Saunders, “undermines the authority of the States in areas of State responsibility”.

By permitting the Commonwealth to put any terms and conditions it likes on grants for local councils, this Amendment seriously undermines the authority and responsibility of State Governments, thus substantially altering the balance of power in our Constitution.

The temptation for future Commonwealth Governments to abuse this power would be enormous. It is not hard to envisage this amendment becoming a new pathway to porkbarrelling of a breathtaking dimension.  

The proposed amendment would give the Commonwealth the ability to involve itself in all sorts of policy areas which historically have been the domain of State and local governments.

There would be nothing to stop the Commonwealth involving itself in local issues like rubbish collection, suburban roads, management of local parks, household pets, you name it, Canberra could now have a hand in it.

A future Commonwealth government could use its financial leverage over councils to apply right across Australia uniform rules relating to the frequency of rubbish collection; speed limits on suburban roads; upper limits on the number of pets per household, etc.

This amendment could also cause major legal and Constitutional uncertainty and conflict between the Commonwealth and the States. If a local government body accepted a Commonwealth grant made on condition that the local government body implemented a particular policy, and if existing State legislation prohibited the local government body from implementing that policy, then a question arises as to whether the Commonwealth-imposed policy overrode the State prohibition.

For example, the Commonwealth could require as a condition of grants to local councils that speed humps be installed on all suburban roads, as part of a national environmental and urban design push to reduce car use. Some States might prohibit  councils putting in speed humps on some roads because of the consequences for police and ambulance services. So whose policy would prevail, the Commonwealth’s or the State’s?

If, as a function of Constitutional law the Commonwealth policy prevailed, then it would mean the Commonwealth was able to use its financial power over local government  to override State authority and further diminish the responsibility of the States in our federal system.

This amendment is completely unnecessary. The Commonwealth can continue to provide funding to local councils using so-called Section 96 grants, via the States, as it does now and has done for many years.

Yet taxpayers will be up for over $70m to fund this latest attempt to expand Commonwealth power – $44m to the Electoral Commission to conduct the Referendum; $11.5m for Commonwealth Government propaganda in support of the Yes case;$10m from the Government towards the cost of the Local Government Association’s Yes campaign; and $10m of ratepayers’ money to support the Local Government Association’s campaign.

The Government is providing a paltry $500,000 to the No campaign, a figure dwarfed by the $31.5m going to the Yes campaign.

The Australian Local Government Association’s support for this Amendment is misguided in the extreme.

It is one thing for local councils to seek “recognition” in the Commonwealth Constitution, although even this is a dubious proposition given that local councils are entirely the creatures of State Governments and are not really a third tier of government , but are in fact administrative units of State governments.

However, as indicated, this Amendment would hand substantial control over councils to the government in Canberra, ultimately to the great detriment of local government.

And is it certainly no guarantee of extra funding for local government. The Amendment merely permits the Commonwealth to providing financial grants direct to local government; it does not require it.

This amendment contradicts the Federalist principles underpinning our Constitution; and it is utterly contrary to the important principle of Subsidiarity – the principle that a matter ought to be handled by the smallest, lowest and least centralised authority capable of addressing that matter effectively.

Voters should be very wary about giving our Canberra-based politicians even greater capacity to use taxpayers’ money to enhance their power and impose their will on local communities all over Australia.

For more information: www.nopowergrab.com.au

EDITOR'S NOTE: This piece was originally written prior to the announcement on 17/6/2013 by the Federal Government of additional funding for both the 'yes' and 'no' cases of the referendum debate. It It has since been updated by the author to reflect this. Government News welcomes comment and opinion  pieces on topical issues, however the views of the authors do not necessarily reflect those of the publisher or suggest their endorsement.