Extract (pp 8-9)
Final Report of the Expert Panel on Constitutional Recognition of Local Government
Democratic recognition
Democratic recognition—changing the Constitution to guarantee that local councils are elected bodies—was opposed by a number of key stakeholders, including the federal Opposition and several State governments and oppositions. It is not broadly supported as a referendum question by local government itself.
The panel notes the conclusion in ALGA’s submission that democratic recognition ‘would not succeed at a referendum. It would not be acceptable to State and Territory governments, it would not gain bipartisan support and it is questionable whether it would resonate with voters’.15
In fact, democratic recognition attracted the strongest support from the general public in the polling commissioned by the panel. The polling analysis indicates that democratic recognition appeals to ‘a higher-level concept than the institution of local government itself’16 and that this is a strong cause of the support. However, the panel recognises that the current state of political opinion may lead to a strong ‘No’ campaign at referendum that would see lower public support than currently indicated by the polling.
Prior to the 1988 referendum for constitutional recognition of local government—one of four questions put to the people at that time—polling before the campaign suggested that 66 per cent of people supported the proposal, but in fact only 33 per cent did so at the referendum. Newspoll, the polling company commissioned by the panel, noted with respect to all forms of recognition tested:
[U]ltimately the outcome of a referendum will be heavily influenced by arguments expressed in the public domain. What all of those arguments will be, who mounts them, and how effective they will be, is impossible to fully predict.
In isolation, the research obtains initial reactions of support that appear to be quite strong. However it also indicates they are based on somewhat fragile underpinnings.17
Most opposition to democratic recognition focused on the supervision of local government systems by the States and the Northern Territory. State governments were concerned that democratic recognition would limit their ability to manage and reform local councils, which are established under State and Territory legislation. A particular concern was that States and Territories retain the power to dismiss a local government and appoint an administration in the limited number of cases where a council is corrupt or dysfunctional.18
Under existing State Acts, local governments are elected in each State and Territory and there is no immediate threat to this occurring. In most States this position is affirmed in the State constitution, in some cases in a manner that requires a referendum to alter it (see Appendix G).
The Victorian Constitution has the most robust provisions guaranteeing the democratic status of local government and only allows the dismissal of a council by the Victorian Parliament, not its Executive.
The Victorian Government submitted that ‘there is nothing to be gained by including similar provisions in the Commonwealth Constitution’.19 To various degrees, other States could advance a similar view.
Should the Commonwealth proceed with a referendum using this option, the form of the amendment could minimise, but not eliminate, the degree of interference with State and Territory constitutions and statutes, by adopting the following formulation:
Each State shall, and each Territory may, provide for the establishment and continuance of a system of local government bodies elected in accordance with the laws of the State or Territory.
Under this provision, it is probable that State and Territory governments would not be able to exercise their executive powers to dismiss local councils, as they have done in the past. Nor could they pass legislation authorising themselves to do so either by legislation or executive order. To maintain the possibility of dismissing a local council, preferably by Act of Parliament rather than by ministerial directive, this amendment could be qualified by adding the following words:
The Parliament of a State or Territory may by Statute dismiss a local government body, and provide for the appointment of persons to perform its functions and exercise its powers until such time as a new local government is elected.
15 Australian Local Government Association, Submission No 334, 11.
16 Newspoll report, Appendix C, 7.
17 Ibid, 8.
18 Western Australian Government, Submission No 572, 2; Anne Twomey, Submission No 593, 13.
19 Victorian Government, Submission No 654, 2.
(note – emphasis added, indented paras in original replaced by italics for formatting reasons).
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