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Frequently Asked Questions

Can the Australian Government pass a Local Government Act like a state government can?

Not directly. Local government is not a subject matter set out as a matter over which the Australian Parliament can legislate. It would take a most expansive reading of the Australian parliament’s constitutional power to even suggest that it could.

Can my local government area run a constitutional referendum?

No. The Australian Electoral Commission runs constitutional referenda.

We can have the issue of constitutional referenda considered pretty quickly in our local government area. Do we have to wait for everyone else?

Yes. A referendum must be held on the same day throughout Australia.

Can a constitutional amendment be conducted at the same time as a federal election?

Yes

Who writes the amendment to the Constitution we are voting on?

The Government. It is contained in a Bill that must pass an absolute majority of both Houses of Parliament before a referendum is put to the people.

Can we expect public funding for the referendum?

It depends on the Government. Usually, the answer would be no. In particular, referendum legislation restricts what the Government can spend money on once the mechanism to change the Constitution commences.

However, the Government funded a neutral education campaign prior to the republic referendum, and provided the non-party political ‘yes’ and ‘no’ groups with $7.5m each to fund advertisements. It should be noted that the republic debate was different to most referendum questions as there was no division on party lines as to whether or not there should be a republic.

What rules apply to a referendum campaign?

As a general proposition, the rules that apply to federal election campaigns also apply to referendum questions.

Can we prevent other proposals to amend the Constitution at the same time as a constitutional amendment recognising local government?

It all depends on the Government. If they want to, they can ask any number of questions proposing any number of constitutional amendments on the one day, so long as they are able to have Bills passed with an absolute majority of both houses of parliament.

When can we expect the referendum to be conducted?

This depends on the Government. However, it is unlikely to have a referendum soon if local government is not clear on what it would like to see contained in the Constitution.

Why didn't previous referenda succeed?

A number of reasons:

• government clumsiness – proposing a number of reforms in one question so that if you don’t like one of them, you are obliged to vote against the lot;
• party politics – with the ALP generally supporting enlarged Commonwealth powers, and the coalition parties (as constituted from time to time) opposing them;
• asking too many questions at once – prompting naysayers to suggest to voters to just vote NO;
• trying to do too much at the one time;
• strong political opponents (including States) advocating opposition; and
• political context (or perhaps the wrong question at the same time)

What do we need to do to maximise the chance of success of any constitutional amendment recognising local government?

To maximise the chance of success at a constitutional referendum, it is incumbent on local government to find a set of words that:

• can be supported by both sides of politics – it is noted that whilst the Liberal Party platform supports the right for local government to have taxing powers commensurate with their responsibilities, they have never expressly supported constitutional recognition of local government;
• can be explained to the community; and
• preferably is put separate from other proposed amendments to the Constitution.

Moreover, local government’s will need to spend time and resources to make their constituents aware of the benefits of constitutional recognition, so they are more likely to support the proposal.

What is a preamble?

A preamble generally establishes the context that led to a law being made.

Would constitutional recognition of local government in the preamble mean that my council could not be sacked?

Probably not.

Would constitutional recognition of local government in the preamble mean that my Council could expect to receive more money from other tiers of Government?

Probably not.

So, does recognition in the preamble achieve anything?

Not in a legal sense. A preamble usually does no more than establish the context by which legislation is made. It does not create any rights or obligations.

In the long term, the High Court might decide that the preamble could create an implied right to say, a right not to be dissolved or dismissed without a hearing, but it would depend on how the preamble was drafted. It certainly would have no legal impact if the Constitution was amended to make clear that the preamble does not create any rights or obligations, as was the case in 1999.

So, why recognise local government in the constitution? After all, in 1901 the subject matter of local government was left to the states.

Because local government existed prior to Federation. It is appropriate for local government to be recognised in the Constitution, which is the paramount political document in the Federation given the increased role the sector has in providing services and infrastructure to Australians.

It certainly removes any doubt that local government is one of the three spheres of government.

Are there any political risks in proposing amendments to the preamble?

It would not necessarily impact on the role of the states. However, if the preamble was amended in a way that removed a reference to the Crown could be argued by some to be ‘republicanism by stealth’.

The role of local government was recognised by the Federal Parliament. Isn’t that enough?

Technically, a resolution of a parliament is no more than an expression of opinion of that particular parliament. It has no legal effect.

Would recognition of a system of local government in the Constitution mean that the Australian Government can pass something like a Local Government Act?

No. The structure of local government would remain a state responsibility.

Would recognition of a system of local government mean that my Council could be sacked or amalgamated?

The law of the state relating to dissolution, dismissal or amalgamation would apply.

Would recognition of a system of local government mean that my Council could expect to receive more money from other tiers of Government?

Probably not.

So, does recognition of a system of government in the manner proposed in 1988 achieve anything?

The states must retain ‘a’ system of local government. At its narrowest, that probably means retaining at least two local government areas, although the High Court could construe the requirement to require the states to retain a ‘meaningful’ system of local government.

Although in the long term the High Court might decide that retaining a system of local government could create an implied right to, for instance, require some sort of consultation before a council is dissolved or amalgamated, much would depend on how the provision was drafted.

If this is desired, it should be specified in the proposed amendment. However, the more requirements contained in the proposed amendments, the more likely that states would object on the grounds that it would affect their capacity to discharge their responsibilities to efficiently administer the state.

So, why recognise local government in the constitution?

Because local government existed prior to Federation. It is appropriate for local government to be recognised in the Constitution, which is the paramount political document in the Federation given the increased role the sector has in providing services and infrastructure to Australians.

Are there any political risks?

Broad recognition of a system of local government in the Constitution was proposed in 1988. It was heavily defeated. There are risks in proposing something that has already been rejected once.

Furthermore, the more requirements that any constitutional amendment imposes before a local government area can be dissolved/amalgamated (eg. requiring a referendum to be held before proceeding) the more states could oppose the proposal on the basis that the preconditions can damage the efficient management of the state.

What is ‘taxation’?

Taxation is the compulsory exaction of money by a public authority for public purposes, enforceable by law, and not a payment for services rendered.

1% of taxation is only a small amount of the overall tax take? This isn’t unreasonable, is it?

It could be controversial because as a general rule, governments do not like hypothecation as it means that funds cannot be used to deal with unexpected circumstances. It also provides a constitutional guarantee of revenue that states don’t have.

Are there any political risks in asking for taxing powers?

The Australian Government may object on the grounds that it could affect the manner by which it manages the Australian economy. States may object on the ground that it provides local government with a constitutionally guaranteed stream of revenue that they themselves do not possess.

Including symbolic, institutional and financial recognition into the Constitution

Finally, you have mentioned three types of constitutional recognition – symbolic, institutional, and financial. Can’t we have the lot?

The more complex the proposal, the greater the chance of opposition as either the Federal Government or the states may think their capacity to discharge their responsibilities could be affected.

Therefore, the more local government requests, the more time and resources it must find to make the case to the Australian people.