Few oppose constitutional recognition of local government as a concept.
Indeed, while the current debate concerns recognition in the federal constitution, local government has been readily accepted in other constitutions – Victoria, for example.
Recognition in the federal constitution must have broad support if it is to be adopted. It would require approval of a referendum by a majority of voters in a majority of states. Previous attempts have failed. History suggests voters will not approve it unless all major political parties do too. In this case, support by local governments is also crucial.
When it comes to attracting wide support, the devil in the detail soon divides opinion over what recognition should mean. Some demand local government autonomy, free from interference by state, territory or federal government, whereas certain state governments strenuously defend their powers to regulate local government and intervene as and when they choose. In addition, the prospect of recognition in the federal constitution immediately raises the sceptre of federal control usurping state and territory government “rights”.
The status and role of local government in Australia reflect our colonial history. They are weak compared to many older societies that did not experience the near-total displacement of indigenous governance by imperial and later colonial authorities. Thus our local governments were created as creatures of colonial governments to carry out limited functions determined by those ruling the colonies.
At federation, those same relationships were carried over to state governments. Local government was treated much like an extension of the state government apparatus, with narrowly prescribed powers and limited resources. In Victoria, wholesale demolition and re-structuring was forced through by the Kennett Government in the early 1990s. An unintended consequence was the backlash that led to recognition in the Constitution - introduced by the Bracks government to shield local government from such intervention.
Re-structuring of local government has also been pushed through in other jurisdictions including Queensland and the Northern Territory. Recent reforms in New South Wales prevented councillors from also serving as members of parliament, with the effect that Clover Moore had to choose between re-election as Lord Mayor or continuing as State MP for Sydney.
Contrast that subservient position with European Union countries in which local government often has an ancient history and formed the building blocks from which nations were built. Many EU local governments exercise a wide range of powers and provide services such as housing which is rare or unknown in Australian local government.
The EU recognises the importance and the potential of local control through its principle of subsidiarity i.e. that decision–making and administration should be delegated to the most local practical level.
The recent report, Fixing the hole in Australia’s heartland, exposes the governance problems associated with the lack of delegation of responsibilities for local governance in the more remote 85% of Australia’s land mass in which 15% of our citizens live.
While the report focuses on remote areas, it has lessons for all. Centralisation of decision-making and administration weakens governance wherever it occurs, notwithstanding the claims of “efficiency” – claims rarely confirmed in practice and even then often of very narrow definitions of efficiency.
The constitutional recognition debate must be used to address these issues in reviewing the role of local government, not merely the status that would derive from a paragraph added to the constitution. It must also be used to generate wide support for the constitutional amendment.
There are a number of obvious potential features of constitutional recognition that could strengthen the position of local government and improve the overall governance of Australia.
First and foremost, constitutional recognition must entrench a guarantee that each local government will be controlled by a democratically council elected from that community and accountable to that community.
Second, each local government must have the right to make decisions on any matter so long as decisions do not conflict with the laws of Australia or the state or territory.
Third, each local government should not be liable to interference in its affairs by the government of Australia or relevant state or territory.
Fourth, if a local government council has been found, after proper inquiry, to be unable to provide for the peace, order and good government of its local government, the parliament of the relevant state or territory may dissolve that council and if it does so, must then call an election for a new council
Finally, any revision of local government boundaries should be conducted the relevant state or territory but must follow due process by allowing for participation in the review and decisions by residents of affected areas.
These are where constitutional recognition could truly make Australia better governed.