Opinion - by Joint Select Committee on Constitutional Recognition of Local Government chair Michelle Rowland
I reckon if you asked anyone to name the level of government in Australia that could be described as “closest to the people”, they would invariably respond with their local council or shire.
They would probably also perceive those who occupy the white building high on the hill in Canberra as the most removed from their daily lives - if for no other reason than the state of the national economy has little to do with the playground where they push their children on a swing set, the community hall where the girl guides meet, the sporting field they attend every Saturday morning to watch the under eights play, or the local road they take to and from the shops.
But the changing nature of the federal-local government relationship is turning this notion on its head.
Nearly every local project which residents have raised with me over the past three years has been precisely that; inherently local.
And since I have never met the resident who appreciates the response of, “Sorry I can’t help you, that’s not my area of responsibility”, I am like the scores of other federal parliamentarians from all sides of politics who harass ministers, departments and anyone else who will listen to find a way to fund these local projects.
As someone whose first experience in public office was as a local councillor, few things give me greater satisfaction than delivering on a new sporting field, a new playground, a new girl guides hall, even a new long jump pit.
So when the highest court in the land makes decisions which could cast doubt on the ability of the federal government to directly fund local government bodies to deliver projects like this, I believe people should get interested.
Financial recognition of local government goes to the very heart of what it means to be a federated nation, and people’s expectations of what their governments should provide for local communities.
I was recently elected chair of a federal parliamentary committee which is examining whether to hold a referendum on constitutional recognition of local government in 2013.
The committee has members from all sides of politics and will build on the report by the Expert Panel on Constitutional Recognition of Local Government, which was released in December 2011.
The expert panel found that if the Commonwealth Government decided to hold a referendum in 2013, “financial recognition” – recognising local government through an amendment to section 96 of the Constitution – was the most viable option.
Financial recognition of local government is, at a very basic level, about how the Commonwealth funds local government.
When the Australian federation was first established, the powers of the Commonwealth were set out in the Constitution.
Where the Commonwealth has responsibility for something – such as health, defence or pensions - it also has the power to fund it.
But if an area of responsibility is not specified in the Constitution, this is assumed to be the responsibility of the states and territories. Local government is an example of this.
They are established under state and territory constitutions, meaning that state and territory law separately determines the roles and functions of local government in each jurisdiction.
Payments from the Commonwealth to states are legal because the Constitution explicitly authorises the Commonwealth to make them. Section 96 allows the Commonwealth to “grant financial assistance to any State on such terms and conditions as the Parliament thinks fit”.
Note that currently only the Commonwealth and states are mentioned, not local government.
The proposal for financial recognition would also include local government in section 96 of the Constitution. This would mean that the current practice of the Commonwealth making direct payments to local government would be explicitly supported by the Constitution.
The Expert Panel on Constitutional Recognition of Local Government noted that some groups, such as state governments, were concerned that recognising local government in the Constitution could risk eroding their responsibility for local government.
To address this concern, the panel suggested an amendment which formally recognised local government as subordinate to, and the responsibility of state and territory governments. The panel’s proposed amendment to section 96 would read:
“The Parliament may grant financial assistance to any State or to any local government body formed by State or Territory Legislation on such terms and conditions as the Parliament thinks fit.”
The paradox of this debate (and I think it is an inherent fact of being a federation) is that whilst local government is a creature of the state and territory governments, we all know it is playing an increasingly central role in the delivery of key local facilities and services.
Many of these feed directly into our national priorities, such as encouraging children to play sport, or building community spaces to support social inclusion.
Right now, significant funding for local government is coming from the Commonwealth without it having any formal responsibility to do so.
In the absence of explicit powers to do so in the Constitution, we are banking on future governments and courts making decisions that won’t detract from an increasing reliance on federal funds.
And as anyone involved in local government will attest, one of the single biggest strains on their finances is the seemingly endless cost-shifting that occurs between all levels of government.
My fellow committee members and I will assess whether a referendum to recognise local government in the Constitution is likely to be successful.
We will also be looking at whether there is a need for broader public education around the Constitution and the referendum process.
There is no point proceeding with a referendum if people haven’t been engaged or given enough information to make an informed vote.
The committee is keen to hear from members of the public regarding their views on the proposed amendment put forward by the expert panel.
Submissions to the committee close on 15 February 2013 and can be lodged online by emailing jsclg@aph.gov.au or through the post addressed to:
The Secretary – Joint Select Committee on Constitutional Recognition of Local Government, PO Box 6021,Parliament House, Canberra, ACT, 2601.
Michelle Rowland is the Federal Member for Greenway in NSW and a former deputy mayor of Blacktown City Council.