Chapter 3 - Key Issues
3.1
The committee received evidence covering a wide range of issues and from
the perspective of a variety of stakeholders, including councils, community
organisations, individuals and academics. The majority of evidence was critical
of the actions of the Queensland Government with respect to the amalgamation
and plebiscites issue and expressed strong support for the bill. However, a
number of submissions and witnesses were critical of the Australian Government
for intervening in a state-local government issue.
3.2
Some of the key issues and concerns identified in the course of the
committee's inquiry are examined below. They are broadly categorised under two headings:
the plebiscite bill and the amalgamation process.
The plebiscites bill
3.3
In general, the five main issues that recurred throughout this aspect of
the committee's inquiry were:
- protection of democratic rights;
- necessity;
- practical issues;
- constitutional issues; and
-
other plebiscite topics.
Protection of democratic rights
3.4
The issue which goes to the heart of the bill, which is a response to
the Queensland Government amendments to the Local Government Act 1993 (Qld),
is the protection of a community's democratic right to conduct plebiscites on
the question of council amalgamations.
3.5
The Queensland Government's Local Government Reform Implementation
Act 2007 (Qld), as well as implementing the amalgamations, prohibits
councils from conducting plebiscites on the matter of reform. As the situation
stands, councils face severe fines and/or abolition if they seek to undertake a
vote on amalgamations. The committee has received strong and consistent
evidence attacking this punitive measure. Trish and Nick Radge put the typical
case:
The Beattie government is using bullying tactics to stop communities
voting on an issue that effects every part of their life - their homes, their
rates, their local environment and their local population. As a democratic
society we have a right to vote for whoever we want, to protest against things
we disagree with and to speak out without fear of reprisal. This right has been
taken away from us when we are not allowed to vote in a referendum and indeed
that the councillors who represent us are threatened with sacking and fines.[1]
3.6
The depth of feeling surrounding this issue was effectively demonstrated
by evidence given by Mr Hayward, CEO of Tambo Shire Council. Mr Hayward told
the committee that prior to the introduction of the punitive provisions and the
Prime Minister's offer to fund plebiscites, he paid for a plebiscite in Tambo
shire out of his own pocket in order to protect his council from the threat of
dismissal:
Mr Hayward—We had ours [plebiscite] recently. Even prior
to the legislation being passed to prohibit councils, the minister tied our
hands by saying he would sack the council because of misappropriation of
funds—that it was a waste of taxpayers’ money.
...
Mr Hayward—That was from the policy adviser
but the minister himself had also said that. The legislation has now since been
passed and obviously overrides that. In that instance, the cost of the poll was
$4,000. I actually paid for that out of my own pocket.
...
CHAIR—Mr Hayward, you said you paid for that out of your
own pocket, your own personal finances?
Mr Hayward—Yes, out of my own personal
pocket. And, given the opportunity of an official poll that would be widely
recognised, I would do it again.
CHAIR—That is a very impressive commitment to your local
community.
Mr Hayward—That was not the reason I did
it, though. It was so that we could have the opportunity to have our say, one
way or the other. My council were at risk of being dismissed if they did it
themselves.[2]
3.7
The committee commends Mr Hayward on his selfless actions and is of the
view that he should not have been put in such a difficult position. The Tambo
Council ought to have been able to use its own funds to seek the community's
views about being amalgamated with Blackall Council. Accordingly, the committee
makes the following recommendation.
Recommendation 1
3.8
The committee recommends that the Queensland government reimburse Mr Hayward,
Chief Executive Officer of Tambo Shire Council, in recognition of the expenses
he incurred in funding its plebiscite in an effort to give the community a say
and to protect its councillors from punitive fines and dismissal. Failing that,
the committee recommends that the Commonwealth government, consistent with its
policy of funding local government plebiscites in Queensland, consider
reimbursing Mr Hayward.
3.9
The Queensland Premier has introduced a bill to amend the ban on
plebiscites contained in the Local Government Reform Implementation Act 2007
(Qld). Premier Beattie is reported as saying that:
Perhaps we were a bit heavy-handed on [the question of holding
plebiscites], and that we got that wrong... [T]hat part of it we stuffed up. But
if people want the right to protest we should allow that. I obviously got that
wrong. When it comes to giving people a vote, John Howard and Kevin Rudd
got it right and I didn't.[3]
3.10
This bill has yet to be debated, and as at the time of writing the worst
excesses of the legislation still stand. The relevant provisions of the Local
Government Act 1993 (Qld) can be found at Appendix 4.
3.11
The committee is also concerned about the absence of a right to appeal decisions
made by government or the Reform Commission in relation to any reform matter.
The Local Government Association of Queensland (LGAQ) submitted that:
the legislation...specifically denies any challenge, appeal,
review or questioning of decisions made by the Commission or the government in
relation to any aspect of the reform process... The explanatory notes to the
legislation acknowledge this as a departure from the government’s own
fundamental legislative principles... On issues of such vital importance to the
future of councils and their communities, this is a significant denial of
natural justice and democratic principles.[4]
The relevant provisions of the Local Government Act 1993
(Qld) can also be found at Appendix 4.
Necessity of federal intervention
3.12
Despite strong support, several witnesses questioned the necessity of
the plebiscites bill. For example, Associate Professor Graeme Orr from the University
of Queensland submitted that there 'is no rationale for ad hoc Commonwealth
intervention into a sub-State issue like the organisation of local government'.[5]
He told the committee that, although he disagrees with the actions of the
Queensland Government, which he said 'clearly should have allowed plebiscites',[6]
he believes that there is 'no need for this bill' unless local government were
to run the plebiscites and require electoral roll information.[7]
3.13
The Queensland Government has been extremely critical of the bill and
the inquiry undertaken by this committee. In correspondence to the Special
Minister of State, the Hon Andrew Fraser MP, Queensland Minister for Local
Government, Planning and Sport stated that:
...there is absolutely no public benefit in the course of the
inquiry being undertaken by the committee. It represents an abuse of the
majority the Howard Government holds in the Senate – when countless worthy
proposals for Senate inquiries have been routinely cast aside by the
government's numbers.
This inquiry is exposed for what it, in reality, always was: a
sham, taxpayer-funded touring circus for Howard Government mouthpieces to
peddle unconstitutional false hope.
Port Douglas and Noosa are, granted, nice places to visit;
especially when compared to Canberra's wintry August. But the inquiry, like the
bill itself, is just a cruel hoax.[8]
3.14
In this context, the committee notes that the Queensland Government has publicly
stated that the provisions prohibiting the conduct of polls by local
governments will not be utilised; and that the Queensland Government has
introduced legislation into the Queensland Parliament to repeal the relevant
sections of the Local Government Act 1993 (Qld), as amended.[9]
3.15
Further, a representative from the Department of Finance and
Administration (Finance) informed the committee of some developments regarding
the apparent withdrawal by the Queensland Government of the punitive provisions
in its legislation:
I am not in a position to formally confirm that the Commonwealth
understands that the laws have been repealed. I have been awaiting a call to
get that confirmation, but as we understand it there was a regulation made by
the Governor in Council on Thursday 30 August and that was said to commence
upon its gazettal. We understand that gazettal occurred on Friday, 31 August.
That had the effect of repealing provisions that would have enabled offences
against councillors and the dissolution of councils involved in engaging the [Australian
Electoral Commissions] in plebiscites. That has just been picked up from
material that is off the record. We just want to make sure that this is operative.
It is not always the case that a regulation can amend a primary act. Presumably
Queensland knows what it is doing, but I am not in a position to confirm that
it has had that effect. It seems that that is what is intended...[10]
3.16
After the public hearings, the committee received additional information
from Finance which elaborates on this evidence. The additional information
states:
...it is the understanding of this Department that the
regulation has commenced. However, in light of the issues below, this Department
is not in a position to comment on the effectiveness of the Queensland
regulation.
The regulation was made by the Governor in Council on Thursday, 30 August 2007 and was gazetted on Friday, 31 August 2007.
The regulation commenced upon notification in the Queensland
Government Gazette. Pages 2326 to 2327 of the Queensland Government
Gazette No. 118 refer and are attached for your information.
The regulation was then tabled in the Queensland Parliament on Tuesday, 4 September 2007. However, a notice of a motion to disallow the regulation
was given on that day by the Member for Warrego, Mr Hobbs MP. Mr Hobbs
gave notice that he would move that the regulation be disallowed "because
on legal advice I believe the regulation is invalid". The Acting Speaker
subsequently issued a ruling to amend the notice of motion to remove the quoted
words.
It is also our understanding that section 50 of the Statutory
Instruments Act 1992 (Qld) provides for a disallowance period of 14 sitting
days after the subordinate legislation has been tabled, while Standing Order 59
for the Queensland Legislative Assembly provides for notices of disallowance
motions to be considered within seven sitting days after notice has been given.[11]
3.17
In subsequent correspondence, Finance confirmed that the disallowance
motion had been defeated: 'the Queensland Parliament considered the
disallowance motion on 5 September 2007. The motion was defeated.'[12]
3.18
On 7 September 2007, the Director-General of the Queensland Department
of Local Government, Planning, Sport and Recreation wrote to the committee to
outline the status of the regulation, the offending provisions of the Act, and
the Queensland amendment bill. The correspondence confirms that the regulation
was approved and gazetted on 30 and 31 August 2007, respectively. It also
indicates that section 159ZZA (the sunset clause) of the Local Government
Act 1993 (Qld) provides the regulation making power to expire section 159ZY
(the punitive provision). According to the letter, the date of gazettal is:
...the effective date of commencement for the regulation and
therefore the expiry of section 159ZY from the Local Government Act 1993.
The next reprint of this Act will see section 159ZY omitted.
The Local Government Amendment Bill 2007 was introduced into the
Queensland Parliament on 22 August 2007 to omit section 159ZY, and to amend
sections 160 and 164. This Bill remains on the current list of Bills to be
debated by Parliament.
The regulation was made to allow section 159ZY to be removed
from State law earlier than would have happened under the Bill.
No councillor or council taking action, after 31 August 2007, to conduct a poll about local government reform can be fined or dismissed.[13]
3.19
Despite these assurances, the committee still has some reservations
about the effect of the regulation. For instance, the sunset clause specified
in section 159ZZA of the Local Government Act 1993 (Qld) relates to the
'expiry of Part 1B', which relates to the entirety of the 'Implementation of
whole of Queensland local government boundaries reform', not simply section
159ZY.
3.20
As a result, the committee is of the view that there remains a degree of
uncertainty surrounding the status of the punitive provisions. The committee
also notes that it is unusual for subordinate legislative instruments, such as
a regulation, to amend primary legislation. The committee further notes that,
at the time of writing, the amending bill remains listed on the Queensland
parliament notice paper and is yet to be debated.[14]
As a result, in the committee's view there is a degree of uncertainty about the
status of the relevant provisions in the Queensland Act.
3.21
The committee is therefore reluctant to assume that the punitive
provisions of the Queensland legislation have been withdrawn until it receives
confirmation that this is actually the case.
3.22
In this regard, the committee is mindful of the comments made by the
Chief Justice of the Queensland Supreme Court on 4 September 2007 in relation to the current civil case
between the Queensland Government and the Local Government Association of
Queensland. The Chief Justice told the court he took into account the Queensland
Government's submission that the amendment would go back before the Queensland
Parliament, but said it 'would be quite wrong' for him to rule on the
likelihood of the outcome. He noted further that '(c)ourts have resisted and
must continue to resist speculation about what might emerge or what might not
emerge from the legislative process'.[15]
3.23
Many witnesses told the committee of the importance of allowing
communities to express their views on the issue of council amalgamations. For example, Dr Taylor of the Noosa Shire Residents and Rate Payers Association
gave evidence that:
...the immediate wish of the Noosa
community is to have an opportunity to express its views on forced amalgamation
via an official plebiscite. Why is the community so keen to express its views?
Because the local government reform process was deeply flawed. It was
undertaken with indecent haste and smelled strongly of a done deal, and the
reform commission’s report was hopelessly inadequate. In a word, the whole
process was undemocratic.[16]
3.24
Many councils also told the committee that they intend to hold a
plebiscite once the bill is passed and the funding is available.[17]
The rationale was summarised by Mr Hoffman of the LGAQ in the following terms:
There are two aspects to the issues confronting the communities
that are potentially seeking the opportunity
to undertake the plebiscite. The first is the return of the democratic right to
express an opinion on a matter such as this, given its fundamental importance
to that community and how it perceives its future. The second is that, if there
is a significant take-up of the plebiscite opportunity and strong opposition to
the amalgamations currently in legislation, the opportunity potentially remains
for that expression of public opinion to influence the government of the day.[18]
Practical issues
Timing
3.25
The committee heard anecdotal evidence that early plans were in motion
to hold plebiscites in a number of locations as early as 20 October. In their
evidence, representatives of the LGAQ informed the committee that negotiations
on the date for a plebiscite were taking place with the Australian Electoral
Commissions (AEC) in Canberra on 4 September, and that the LGAQ's initial
position would be to advocate for the poll to take place on 20 October.
3.26
However, in its evidence, the AEC ruled out the possibility of conducting
plebiscites on 20 October, because of the need to concentrate resources to the
federal election.[19]
3.27
The main alternative date that was discussed by several witnesses was
the day of the forthcoming federal election. Professor Costar, after noting
that the AEC is currently preparing for the 'mammoth task' of the federal
election, went on to discuss three concerns. Firstly, he noted the potential
uncertainty that may arise if the plebiscite were to be voluntary saying that
this may 'confuse a number of voters who think that the entire election is
voluntary'. Secondly, he said there could arise problem, if the plebiscite were
an attendance poll, with voters confronted with three different ballot papers.
Finally, he noted that the last time a plebiscite was held simultaneously with
a federal poll in 1984 'it spiked the informal vote'.[20]
3.28
The uncertain timing of the election also made an accurate estimate of
the earliest possible date for a plebiscite difficult, but the AEC
representative took the view that the poll would most likely occur by way of a
postal vote, not least for reasons of economy.[21]
He also revealed that the AEC is not considering the option of holding a
plebiscite in conjunction with the federal election:
At this stage we are not even considering the possibility of
having an attendance ballot in conjunction with the federal poll, other than
the issue of section 394 of the Commonwealth Electoral Act. There are all sorts
of other issues of confusion—boundary differences, voting differences,
different ballot papers, higher informality possibilities—that we are not even
contemplating that as an option at this stage.[22]
Financial implications
3.29
According to the Explanatory Memorandum, the bill will have a financial
impact but 'it is not possible to quantify that impact at this stage as the
cost is dependent upon the nature of the arrangements entered into by the AEC'.[23]
3.30
However, the committee did take some evidence on the likely cost of
plebiscites, based on the experiences of councils which had staged them in the
past. The cost, seemingly dependent on the number of voters and the type of
ballot, ranged from 'a few thousand', through to approximately $30 000 in Inglewood.[24]
3.31
The representative from the AEC noted that a postal ballot would be the
most cost-effective means of conducting a plebiscite:
...our preference, and the most economical way, is for a postal
ballot rather than an attendance ballot.[25]
3.32
The AEC representative indicated that the Department of Transport and
Regional Services would provide the required funding to the AEC to enable it to
perform its functions under the bill, rather than funding being directly
appropriated to the AEC.[26]
Mechanics
3.33
The committee notes that the mechanisms by which plebiscites will be
conducted are uncertain because the details of the plebiscite process are to be
determined through regulation.[27]
3.34
The committee heard that councils are 'looking for agreements to have
the poll on the same day state wide, coordinated by LGAQ and run by the
Australian Electoral Commission'.[28]
3.35
The AEC also commented that the mechanics of the plebiscites process
would need further consideration, namely:
unknown18unknown1Funding
is another issue, and the logistics. Figures quoted by LGAQ talk about as many
as possibly 800,000 voters, which, if we have a postal ballot, means 2½ million
envelopes that we do not have and that have to be printed, because there are
three envelopes in a set of ballot material—an outer, a returner and
declaration envelope. So there are all those sorts of issues. We are not being
bloody-minded. We are not digging our heels in. But—and I speak on behalf of
the commissioner as well—we have our focus on the federal poll at the moment
and the timing of the emotion out there is a little unfortunate in that we are
obviously not sure of the date of the election other than probably before
Christmas.[29]
3.36
A specific practical issue arose during the committee's hearings in
Noosa. The committee heard evidence that several communities immediately
adjacent to the Noosa local government area, including Eumundi, Doonon,
Verrierdale and Coolum would like to participate in a future Noosa plebiscite. Prior
to the decision to amalgamate Noosa Shire, Maroochy Shire and Caloundra City to
form the Sunshine Coast Council, both regions wanted to become part of the same
local council area. Mrs Mitchell of the Eumundi, Doonan, Verrierdale
Action Group Inc. expressed her doubts that they could be included in a Noosa
plebiscite saying:
[I]f Noosa Council calls for a plebiscite, we presume it would
just be conducted within Noosa shire. So we are in no-man’s-land. We are
outside of that, but we are inside of Maroochy shire and we presume that they
do not want a plebiscite. We will be in this no-win situation if plebiscites
are conducted within shires.[30]
3.37
In the committee's view it would be preferable for existing local
government entities to explore with the AEC, ways to over come this and other
similar examples, in order to facilitate the participation of these communities
in a plebiscite which is of genuine interest to them.
Implications for the Australian
Electoral Commission
3.38
Professor Brian Costar argued that the bill undermines the independence
of the AEC enshrined in the Commonwealth Electoral Act 1918
(Commonwealth Electoral Act) by in effect requiring it to conduct 'politically
charged' plebiscites:
This comes about by the fact that the reported comments of the
Prime Minister and other Ministers that the services of the AEC will be made
available for the conduct of plebiscites concerning local government
amalgamations in effect means that the AEC will be 'directed' by the Special
Minister of State to conduct such plebiscites when and where the Minister so
determines. This infringes the status of the Commissioner as an independent
statutory officer.[31]
3.39
In response to claims that the bill gives the government additional
powers which might be seen as the 'thin end of the wedge' in terms of the
government directing the AEC to undertake plebiscites or similar polls, a
representative from the AEC informed the committee that this is not the case:
I would like to point out that, under the existing section 7A of
the Commonwealth Electoral Act, the commission may make arrangements for
any such polls, so there are no direction powers there at all.
...
...the commission may make arrangements. It is quite clear
that there is a discretion for the AEC for the commissioner or the commission
to decide whether or not to perform these functions.[32]
(emphasis added)
Constitutional issues
Constitutional validity
3.40
The committee received evidence arguing that the bill may be
constitutionally invalid on two bases:
- that it falls outside the scope of Commonwealth legislative power;
and
- that it infringes the Melbourne Corporation case principle
relating to the existential autonomy of the states.[33]
3.41
Professor Gerard Carney argued that, to the extent that proposed
subsection 7A(1E) of the bill purports to override state law, it is likely to
go beyond the scope of Commonwealth legislative power because it is not
'sufficiently connected' to the source of legislative power upon which the AEC
is established and to its functions under the Commonwealth Electoral Act.
3.42
Professor Carney noted that proposed subsection 7A(1F) may be supported
by the external affairs power (section 51(xxix)) in its application to state
law, as a partial implementation of Australia's international obligations under
Articles 19 and 25(a) of the International Covenant on Civil and Political
Rights (ICCPR). However, proposed subsection 7A(1F) would be superfluous if the
Queensland law is deemed invalid for infringing the implied freedom of
political communication.[34]
In Professor Carney's view, section 159ZY of the Local Government Reform
Implementation Act 2007 appears to infringe that implied freedom.[35]
3.43
Associate Professor Graeme Orr argued that the bill 'would not pass
constitutional muster' since it offends the Melbourne Corporation
principle and it is not supported by any underlying Commonwealth power.
3.44
Associate Professor Orr's opinion differed to that of Professor Carney
in relation to the constitutionality of the Queensland law (as it originally
stood):
My view...is that the Queensland law, though harsh, is not
unconstitutional because it still leaves a host of methods for councils and
councillors to communicate with their public, including by various survey
methods and protests.[36]
3.45
In response to concerns about the constitutional validity of the bill, a
representative from Finance informed the committee that the Australian
Government had considered the relevant legal and constitutional issues:
...the government gave very careful consideration to the legal and
constitutional issues when considering its response to the Queensland law. We
note that a number of submissions raise legal and constitutional issues. We
also note that not all of those opinions are uniform. Those positions do not
affect the government's position. As I have said, the government gave very
careful consideration to the legal and constitutional issues.[37]
3.46
When questioned by the committee about whether the government had
obtained legal advice about overriding state legislation by founding the bill
upon the ICCPR, the Finance representative indicated that the government had
obtained legal advice from the Australian Government Solicitor:
It is on the public record from the Prime Minister in his
statement on 16 August when he said...that the Commonwealth was 'going to
act to prevent that'—being the Queensland laws—'occurring'. Then he said:
'And we have legal advice that we can do so and the bill will
provide accordingly'[38]
3.47
On the basis of the statement by the Prime Minister, the committee is
satisfied that the legal advice supports the constitutional validity of the
measures contained in the bill.
Constitutional recognition
3.48
The Constitution, while recognising government at the national and state
levels, does not make mention of local government. The issue of constitutional
recognition of local government has been put to the Australian people twice (in
1974 and 1988) by way of referenda pursuant to section 128 of the Constitution.[39]
In both instances, the proposals to expressly recognise local government in the
Constitution were rejected; the current situation is that the constitutional
relationship between the Commonwealth and local government has to be through
the states.
3.49
A number of councils and other witnesses told the committee of their
support for the recognition of local government in the Constitution. For
example, Mr Bob Ansett from Friends of Noosa told the committee that
he hoped that 'the experience that we are going through in Queensland at the
present time would muster the support of all parties to ensure that
constitutionally the local government is recognised in the Constitution'.[40]
However, Mr Ansett warned that constitutional recognition of local government,
while a good long-term goal, would not address the immediate issue of forced
amalgamations in Queensland.[41]
3.50
In a similar vein, Mr Glen Elmes MP, submitted that:
I do not have a problem with the constitutional arrangements.
Let us face it, there has not been anything really wrong with the arrangement
as it stood up until this particular point. Whether we recognise local
government in the federal Constitution or the state constitution, I am prepared
to go along with it... I think if we had gone about the process within the
existing rules we would not be sitting here talking about whether or not we
need to enshrine local government in the state constitution or the federal
Constitution because we had a process that worked.[42]
3.51
Witnesses also acknowledged that constitutional recognition of local
government will 'not happen overnight' since it is not directly linked to the
current issue of local government amalgamations in Queensland.[43]
In any case, the attitude of state governments to constitutional recognition
for local government would need to be taken into account:
There is a lot of work to be done on a future referendum on
constitutional recognition. It is a very complex issue
...
I do not think there is a great appetite for recognising or
elevating local government to any degree; although, I think we are making some
progress in various states where there is some discussion about the fact that
there needs to be a reform of how local government is treated. Each of the
states are now entering into agreements with their local government
associations. I think there is a bit of a way to go. I think they are lukewarm
in some states and I think we have a bit more work to do.[44]
3.52
There are a range of complex issues around constitutional recognition
and a range of different possible objectives. For example:
- protection from state government actions;
- funding sources; and
-
roles and responsibilities of local governments.
Recommendation 2
3.53
The committee recommends that the Commonwealth government should continue
dialogue with local government to ascertain and clarify the objectives and form
of any constitutional recognition. A future referendum should only be held once
local government has a clear and unified view of the purpose and form of
constitutional recognition.
Other plebiscite topics
3.54
The committee notes that the provisions of the bill are broadly drafted
and potentially go beyond the issue of plebiscites on local government
amalgamations. The bill would therefore enable plebiscites to be conducted in
relation to a range of other topical issues.
3.55
In this context, the committee notes that the Prime Minister's
announcement related only to the funding of plebiscites for local government
amalgamations. The decision in relation to funding has been made by the
Government and is not subject to this bill.
Committee view
3.56
Aside from a small number of opposing groups, the committee heard of the
overwhelming support for the bill. Support was particularly strong from local
councils and community groups who gave evidence that their democratic right to
voice their opinion on an issue that affects them greatly had been trammelled
by the 'heavy handed' action of the Beattie government (discussed further
below).
3.57
The committee notes the concerns raised by several academic commentators
regarding the constitutional validity of the bill. It also notes that the Australian
Government has obtained legal advice to the contrary. Without access to this
latter material it is not possible for the committee to offer an opinion on
this issue.
3.58
The committee also notes the views put that the bill is unnecessary,
because the Queensland government has decided to withdraw punitive penalties
against councils undertaking a poll. In this context, the committee notes that,
at the time of writing, it is unclear whether or not the offending provisions
remain in force. The passage of this bill will provide protection in the event
these provisions were not repealed or similar legislation was again introduced.
3.59
The committee is of the view that the bill will restore a pre-existing
right of Queensland local councils to conduct a plebiscite on whether their
constituents support council amalgamations, a right recently removed by the Queensland
government. The committee acknowledges that any plebiscite will not over-rule
the Queensland government's move to amalgamate many councils across the state.
However, what the bill will do is ensure that councils have the opportunity to
seek the views of their communities, in an open and public manner, on a
decision imposed upon them by the Queensland government without adequate consultation
and without a right of appeal.
3.60
Accordingly, the committee strongly supports the passage of this bill.
Amalgamation process
3.61
Although the scope of the bill is broader than the Queensland council
amalgamations, many submitters commented on the bill in that context. In this
respect two main issues emerged, the:
-
inadequate Local Government Reform Commission (Reform Commission)
process; and
- unsupported Reform Commission recommendations.
Each of these topics is discussed below.
Criticisms of Local Government
Reform Commission process
3.62
There was a range of criticism of the Reform Commission process. These
included the:
- undue haste of the process;
- lack of adequate consultation;
- abandonment of the SSS process; and
- Reform Commission's terms of reference which essentially
predetermined the recommended amalgamations.
Undue haste
3.63
The Reform Commission was given three months to undertake a state-wide
review of external boundaries and electoral arrangements for all 156 councils
in Queensland. In Noosa, Mr Glen Elms MP submitted that:
I think it is fair enough to say that that schedule—the size,
shape and sustainability schedule—was lagging a little bit slowly. That is a
fair enough comment to make. But to change it all in three months when it has
been in effect for 100 years is undue haste. I think if we had gone about the
process within the existing rules we would not be sitting here talking about
whether or not we need to enshrine local government in the state constitution
or the federal Constitution because we had a process that worked.[45]
3.64
While witnesses generally acknowledged that there had been some delays
in the SSS process, it was put to the committee that one reason for the delay was
the Queensland treasury corporation:
Part of the reason the process was perhaps not proceeding as
quickly as it might was that there was a requirement for the Queensland
Treasury Corporation to have investigated the financial status of the councils.
They completed their study with 105 of the 157 councils but the remaining councils
could not participate in the process because the Queensland Treasury
Corporation had not done its work. For the Premier to say that we were dragging
our feet—and, by the way, Noosa was not—without referring to the fact that the
Queensland Treasury Corporation was tardy at best in its process, really begs
the question: what was he trying to achieve in the first place?[46]
3.65
The LGAQ explained that the Queensland government's imperative to proceed
with its reform agenda with such haste was driven by a new government objective
to enable the amalgamated local governments to go to election on the expected
date for council elections; that is 15 March 2008.[47]
3.66
The committee agrees that, on any reasonable analysis, this timeframe
was insufficient to achieve a properly considered result. The LGAQ reflected on
the danger in adopting such a short-sighted approach when it submitted that:
The state government indicated that the boundaries of local
governments were in fact outdated and needed to be changed. The process it introduced,
as I indicated, potentially provided for the future for the next 50 to 100
years to be resolved in a period of three months without the opportunity for
communities to engage effectively with the Local Government Reform Commission
as it undertook its work nor subsequently to express their opinions in any
formal process in relation to matters specifically relating to changes that
would affect those communities for a very long time.[48]
Lack of adequate consultation
3.67
As discussed in chapter 2 the Reform Commission invited submissions
within a one month timeframe. As a result of the Reform Commission receiving
tens of thousands of submissions, many submitters felt that their suggestions
were not properly considered and their concerns had not been listened to. For
example, Mr Alex McDonald submitted:
The Commission says it received thousands of suggestions overall
but I doubt if any significance was given to any suggestion indicating the
person sending the suggestions did not want any amalgamation in their area. In
my opinion, the Commission could not have read and understood all submissions
received in the short period of time it existed and basically spent its time
cutting and pasting, reusing as much as possible the words of the first written
report to justify its expected result.[49]
3.68
In a similar vein, E.R. Relf submitted:
The current Queensland Government ignored some 18,000 Noosa
votes against amalgamation at the time of the last Federal Election, and also
against amalgamation approx 34,000 submissions sent by Noosa residents during
the Local Government Committee review process.[50]
3.69
Furthermore, the LGAQ described the lack of direct communication and
interaction between the Reform Commission and those communities with an
interest in the process:
Despite calls from the LGAQ and many communities across Queensland
to conduct regional forums/briefings, the Local Government Reform Commission
made a deliberate decision to stay in Brisbane and operate behind closed doors.
Interested parties had only one month in which to forward suggestions to the
Commission and at no time were councils or community representatives able to
engage in face to face discussions or debate with the Commission or its
officers.[51]
3.70
It is of little surprise to the committee that, given the timeframe, the
Reform Commission has been accused of undertaking inadequate consultation. The
committee heard this complaint from many witnesses at each of its hearings.[52]
Abandonment of the SSS process
3.71
Aggravating the short timeframe and lack of engagement was the fact that
the SSS process was abandoned with little or no warning. Caught by surprise,
most stakeholders scrambled to make submissions to the Reform Commission.
Representatives of the Noosa Council expressed anger and frustration at the
Queensland Government's secrecy when planning the amalgamation. Mayor Abbot
remarked:
[W]hatever the Queensland government did to stop the leaks, they
should patent it and sell it to every other government in the world, because it
was absolutely faultless. Nobody knew... We could not get people to talk to us
who would talk to us before, and we were finding more and more difficulty in
getting not necessarily information but even assistance from those people
because they for some reason had become resistant... On the Monday, there was a
cabinet meeting. On Tuesday, down came the hammer. So, from my perspective,
there must have been something significantly planned prior to that. There must
have been some understanding of what the final state picture would look like,
and there must have been significant work already done before the commission
started.[53]
3.72
Mayor Trevor of Isis Shire Council felt similarly:
The minister looked us in the eye, urged us to re-enter the
process that had the full support of the Queensland government, shook our hands
and at the same time had printing being done in the back office to pull the rug
from underneath us. That really riled us. If he had said, 'I am not happy with
the process and I want to make some changes to it,' that is fine; that is his
right. But to tell us one thing while he was actively doing another we see as
treacherous at the best.[54]
3.73
According to various witnesses the SSS reform process included the consideration
of amalgamations, but also ranged more broadly to other issues such as shared
service delivery; management, organisation and operational arrangements; and
resource sharing arrangements. Mayor Trevor submitted that:
Local government reform was never just about amalgamation; it
was about talking and seeing how we could deliver services across boundaries,
how communities could work together better and, in some cases, where
communities would want to amalgamate to be able to do that—where there were
like groups very close together. We always believed that communities and local
government would have a fair say in how that process was undertaken. That
reform process and the Queensland government’s decision have taken away the
right of those communities to have their say.[55]
3.74
The LGAQ submitted that most councils were fully engaged in the SSS
process, and that positive progress was being made:
At the end of March 2007, 27 Review Groups consisting of 117
councils were fully engaged in the SSS process. Fifteen of these groups had
developed their terms of reference setting out the scenarios for investigation
during the comprehensive review phase of the process. In many cases, councils
were prepared to delay local government elections until October 2008 in order
for reviews to be completed and unhindered by electioneering.[56]
3.75
The Noosa council verified this analysis, when Mayor Abbot expressed his
Council's enthusiasm for reform in the context of the SSS process:
[W]e were at the end of the first stage in the review, where we
were establishing bon fides. We, as Noosa council, had submitted to the panel
our wishes, basically, as far as what we thought the size and shape of the
future Noosa council should be... We saw that the real potential for the Sunshine
Coast was to make two good councils out of three.[57]
3.76
Councillor Pennisi, who appeared in a private capacity but sits on the
Stanthorpe council, also assured the committee of that council's engagement
with the SSS process:
All councils in that region were at the table and very willing
participants. I would like to add that from a personal point of view I have no
doubt that amalgamation in some cases is very, very necessary. [58]
Predetermined outcomes
3.77
A number of witnesses criticised the Reform Commission's terms of
reference, claiming that they were drafted with a view to achieving a
pre-determined outcome.
3.78
The LGAQ submitted that:
The terms of reference for the Commission were considered
especially narrow giving preference for "whole of area" amalgamations
and a focus on financial sustainability over other community development
objectives. This has been of particular concern for many councils and
communities across the state and is justified by research commissioned in June
by the Department of Local Government, Planning, Sport and Recreation entitled "outcomes
of major local government structural change". This research concludes that
"there is little evidence (mainly due to lack of data capture) about the
gains to be made out of amalgamations and that factors such as efficiency,
scale, cost reduction and elimination of duplication are often over-emphasised
and not properly balanced with factors such as the attachment people have to
place and community and their concept of local democracy and representation".
3.79
A number of witnesses appearing before the committee also took the view
that the terms of reference were skewed to achieve a predetermined outcome.[59]
In Emerald, Mr Howard Hobbs MP put it bluntly:
The reality is this. Look at the terms of reference and look at
the statements by the minister and the Premier as well as the second reading
speech, which I did. I got a map of Queensland with the council boundaries. In
fact, I drew what I thought they would have had to draw with those terms of
reference. I came out very close to what we did. In other words, the
instructions they gave the reform commission were to draw the boundaries the
way they wanted them. That is quite clear. I do not think anyone can really
deny that. It was simply a matter of just joining the dots.[60]
Criticisms of forced amalgamation
of Queensland councils
3.80
Witnesses were also highly concerned that the amalgamation
recommendations of the commission were not supported by any social or economic
analysis. Mr Hobbs MP put it succinctly:
[N]o professional, academic, social or cost-benefit analysis has
been done in relation to this exercise. It is like going out and buying a huge
business and not looking at the books. Local government assets are valued at
about $86 billion, and nobody had a look to see what the impacts are likely to
be at the end of the day. Nor did they really have a good look at what the social
impact is likely to be on many of the communities and on the 37,000 employees.[61]
3.81
The Hon Bruce Scott MP, Federal Member for Maranoa, argued that
amalgamation is a 'band-aid answer' rather than a real solution to addressing
inefficiencies in local government:
The Beattie Labor Government has repeatedly expressed financial
sustainability and efficiency as justification for the forced amalgamation of Queensland
shires. One cannot deny that there are a number of councils in Queensland which
are in debt or are struggling financially. This could be attributed to the
gradual increase in local council responsibility due to pressure from both
state and federal levels of government, often without adequate monetary
acknowledgement. Whatever the cause, history shows amalgamation is not the
answer to monetary problems, and does not only fail to improve efficiency but
also damages social fabric and community cohesion.[62]
3.82
Mr Scott also argued that, in addition to failing to fully resolve
issues of inefficiency, amalgamation has 'generated negative consequences in
the way of reduced local community cohesion and association, reduced vibrancy
in local democracy, decreased economic activity and a loss of sense of place'.[63]
3.83
Mayor Trevor of Isis Shire Council agreed,
Under the process that we have been through and that the
government has now pulled the rug on here in Queensland, there has been no
economic modelling showing any benefits of ‘big is best’. Indeed, at the local
government conference in the last couple of days we have heard from
international speakers on overseas trends to break down local governments so
that the word ‘local’ becomes what it was meant to be—local people working
together to solve local problems.[64]
3.84
Mr Hayward, CEO of Tambo Shire Council, concurred, adding that:
Good analysis considers the triple bottom line approach. The
social and environmental factors were not considered, and only cursory
consideration was given to the financial aspects. However, no financial
modelling was conducted on the proposed changes to see if there were any cost
benefits. When this was raised with the minister early in the week during the
local government conference, he confirmed that no such modelling was undertaken
to see what benefits there would be. In the report they use buzzwords like
'economies of scale', but when asked what these may be no‑one can
actually cite any examples. The recommendations are based on assumptions and
not on sound financial reasoning.[65]
3.85
Associate Professor Graeme Orr from the University of Queensland argued
that the Queensland Government has been heavy-handed in its approach to the
amalgamation issue:
The pre-existing Local Government Act included a process for
local polls. Whilst these may have had no binding purpose, they would have
allowed Shires/ratepayers to vent steam.[66]
Impacts on communities
3.86
Repeatedly, the committee heard of witnesses' grave concerns for their local
communities as a result of the forced council amalgamations. Although it is not
possible to cover all of the council areas that are deeply worried about the
implications of forced amalgamations, the committee uses the following examples
as illustrative of the concerns raised.
3.87
Redcliffe council has identified a possible additional financial cost of
as much as $100 million in the next two years, primarily due to the need
for IT systems between existing councils to be integrated. Mayor Sutherland noted
that additional costs such as these, and ever-present demands for services from
ratepayers, creates an inevitable tension:
[W]e have a very high standard of maintenance. In fact, if any
of you guys from down in the capital city can remember, Redcliffe won the Tidiest
Town award in 2005 because the community have a say in the direction of their
city and successive councils have maintained an extremely high standard. In a
big, amalgamated city, a shire of 350,000 people, is that same standard going
to be applied to the rest of the shire or are we going to fall to the same
standard as the others? I am not saying that disparagingly about our neighbours,
because our neighbours maintain their places at as high a standard as they can
possibly afford. The fact is they cannot afford to maintain standards to the
level we do. That is something that we have tested on our community through
extensive community surveys. Our community demand that.[67]
3.88
In addition to the financial impact, councils were quick to identify the
possible social ramifications of amalgamation for communities. In Emerald, Mr Scott MP
described the partnership which exists in the Tambo shire in relation to the
provision of services. He gave the particular example of rural pharmacy
initiatives provided by the federal government, which stand to be compromised
by the amalgamation process:
The local community believed that for the health of their community
they needed a pharmacy like every community needs a doctor. It is about
essential services. That pharmacy is there because of the local council and the
funds that it is providing and the funds that federal government is providing
under the rural pharmacy initiative to provide support for a pharmacy in a
place where it would otherwise be uneconomic to provide a pharmacy. It would
not be there if the process was administered by council that governed a larger
area. Evidence from anywhere around the world, as I said earlier, is that
efficiency is not a function of size. Local communities and local solutions are
all about local people and local decisions. The other thing about that
pharmacy, which is a very good example, is that the nearest town is 100 kilometres
away. If you need prescription drugs, sometimes you might not have the time to
use the next mail service to bring those prescription drugs to you. That
provides a local service for that community. It is working very well.[68]
3.89
A similar situation exists in relation to critical community services
such as the SES, fire brigade and ambulance services, which the committee heard
are sometimes subsidised by local councils and staffed by council officers in a
voluntary capacity. In the event that amalgamation takes places, these
subsidies would be at risk.[69]
Councillor Back gave other examples of the role of local councils in supporting
their community:
I would have to say that amalgamating a lot of the smaller
councils and smaller areas will take away the enticement that is carried out by
local leadership of local councils. If there is no-one in the town working to
try to entice new businesses and new ideas, obviously they are going to fall
over. Moving all the power to one large central town does not help us in that
matter. In our little town of Ilfracombe, as you have no doubt heard in other
places, we do all sorts of things. At present we own the post office and the
railway and run them both because they looked to be in danger of falling by the
wayside. Previously they owned the store and some houses but once they got up
and going again and got on their feet, they on-sold them, as is the case with
both of those things.[70]
3.90
Various witnesses also made the obvious point that amalgamation must
involve fewer local government representatives. Mr Hayward described some of
the consequences of reducing the number of representatives, including an
inevitable loss of representation of local issues:
The proposed new shires are double in size and in some cases
triple. Representation will be significantly reduced. Tambo will have only one
councillor on the new proposed shire and therefore reduced representation. By
having only four councillors and a mayor, it is hard to form a quorum. Most of
our councillors are property owners. They shear and wet weather gets them
bogged in. If we have only four councillors, it will not be uncommon to not
have a quorum. We have six councillors and Blackall has eight ... Because we have
eight councillors we have great representation. We have eight people with
different attributes representing different communities—one is a nurse, one is
a landowner. We get really good representation with more people like that
sitting around the table and we make better decisions. To have only one
councillor coming from Tambo, with that person representing the entire region,
we honestly do not believe that we will see the same development that we have
been actively pursuing.[71]
3.91
Councillor Back expressed similar frustrations:
Previously our three shires, Ilfracombe, Isisford and
Longreach—the three which are to be amalgamated—ran to nine councillors in
Longreach and six in each of Ilfracombe and Isisford. That gave us
representation of 21 councillors. This has been reduced to six only and the
problem we see is one of representation. Isisford is quite a long way from
Longreach and there is a voting public of 178. Ilfracombe has 200 voters. These
numbers do not come up to the required number for a one-vote, one-value
concept. Although we had a meeting with Mr Beattie and Mr Fraser in Barcaldine
and Mr Beattie said he would try to allow us representation on a community
basis, this has not been the case. When the legislation went through they have
changed it to do away with multimember divisions. We were given our divisions—which
we had asked for—but not six out of six. This has led us into an extremely
untenable position. The Electoral Commission phoned me three days before the
due date when all the numbers were due in and things settled and I was asked
for our estimation of what we would consider a fair or reasonable break-up of
the new regional shire. He said, 'I cannot see how we can cut this up; it is
almost impossible'—and it is.[72]
3.92
Loss of local identity was a recurring theme among councils. Noosa shire
was particularly keen to emphasise its special character:
[T]he prospect of Noosa being amalgamated into the southern
shires is sad beyond belief. This is a process of mediocrity; this is a process
of dumbing things down. Noosa runs far and away the best shire in this state,
and arguably in the country. For it to be absorbed into its southern neighbours
is a travesty. They ought to be looking at Noosa and saying, 'This is a shining
beacon; this is the place that we can look to for leadership across the world
in how to develop sustainable communities.' They ought not be looking to throw
it together with two shires which have totally disparate philosophies. They
look to do different things with their towns. We are not criticising them; we
are just saying, 'Leave us alone to do our thing.' There are millions of people
across the world who come here on a regular basis because Noosa represents to
them many things which they cannot find elsewhere in the world. To insist on us
being aggregated with other shires with such different reasons for being is
ridiculous beyond belief.[73]
3.93
In a similar vein, the Mayor of Douglas Shire, Councillor Berwick told
the committee:
Part of Australia’s heritage is regional and rural communities.
Let’s look after them. Let’s keep them empowered. They have their own
character; they are all different. Once you start joining us all together into
big governments we start to lose our identity—and we are upset about it. Every state
has done this badly. It is about ‘big is better’, but big is not necessarily
better. You want to keep character and diversity. They are not all the same as Douglas’s;
they might be completely different in different places. It does not matter. It
is diverse. If there is any way this process can help keep that diversity in
place in Australia I think it is good for all of us. And I think that diversity
is about empowering local communities.[74]
3.94
The unique situation of Torres Strait Councils having responsibilities
arising from being partly bounded by an international border were detailed by
the Chair of the Torres Strait Regional Authority, and Chair of the St Paul's
Island Council, Mr Toshie Kris:
There was no proper consultation throughout our region. It
really distresses me. We are talking about a region that looks after more
services than any other shire in the region, because we also deal with an
international treaty right throughout our region. I would love to see how the
Mayor of Cook Shire or the Mayor of Douglas Shire would deal with 10 canoes
sitting on the beach with people with diseases ranging from TB and dengue to
HIV. These are real issues that are happening throughout our region. It has
been stated that our region is the eyes and ears of Australia. With the
amalgamation process, the only thing left is the bare skull. There is a passage
through that skull to Australia that no-one has really given any answers to.[75]
3.95
Erosion of cultural identity was also cited as a consequence of the
amalgamations by Mr Joseph Elu, Chair of the Seisia Island Council:
We are a different race of people to any other in this world.
There are only 30,000 of us on this planet. This amalgamation will throw us
together in a sense that we do not want to be. It will throw us, on the tip of Cape
York, together with Aboriginal people. We feel we will lose our identity... We
believe that God gave us part of the country that we are sitting in. I plead
with this committee to come up with some answers for us. Otherwise, we will be
lost to everything in this world.[76]
Committee view
3.96
The committee is deeply concerned about the process and potential
outcomes of the Queensland council amalgamations. It heard evidence of the
abandonment of the voluntary SSS reform process, the 'flawed' Local Government
Reform Commission process and the 'predetermined' recommendations for amalgamations
without the right of appeal.
3.97
The committee received much evidence on this issue of the likely social
and economic outcomes of the amalgamations. The committee is concerned that in
the short timeframe given to the Local Government Reform Commission, it was not
able to conduct comprehensive social and economic analysis. The committee is of
the view that this ought to have been done prior to deciding on the council
amalgamations. Accordingly, the committee makes the following recommendation.
Recommendation 3
3.98
The committee recommends that the Senate Rural and Regional Affairs and
Transport Committee conduct an inquiry into the social, economic and other
impacts of the amalgamation process at a suitable time after the council
amalgamations are implemented.
3.99
The committee accepts that there is nothing inherently wrong with
council amalgamations. Amalgamation may be right for some councils and not
right for others. However, the committee supports the views of many submitters
that the scope of local government reform should consider questions beyond mere
mergers (such as shared resources and service delivery), and that councils and
communities impacted by any reforms should be properly consulted in the
process.
3.100
The committee is also deeply troubled by the imposition of punitive
penalties designed to override councils' and communities' democratic right to
express their views on the amalgamations by way of a plebiscite. In the
committee's view there can be no justification for the removal of such a
fundamental democratic right.
3.101
The committee notes that the Queensland government has acknowledged it
was wrong to be so heavy-handed and that it has put forward amendments to
remove the offending provisions. The committee further notes that at the time
of writing, it is uncertain whether or not the offending provisions remain on
the Queensland parliament statute books. Accordingly, the committee strongly
supports the passage of the plebiscites bill in order to provide certainty to councils
wishing to enable their communities to express a view on the amalgamations.
Recommendation 4
3.102
The committee recommends that the bill be passed.
Senator Mitch Fifield
Chair
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