Tony Zappia (Makin, Australian Labor Party) Share this | Hansard source

I begin by thanking the member for Riverina for his kind remarks about my time as Mayor of the City of Salisbury. In speaking on this matter, I want to put the issue of local government in context. There are about 560 local governments around Australia, and each exists and is enacted under state laws and, in the case of the Northern Territory, under the Territory law. They are state laws which can be amended at any time—and in fact often are—and which prescribe the powers and functions of local government. The existence of local government effectively rests with the state and territory governments. Yet local government is and has been entrenched as a level of government in the eyes of the Australian people for decades and decades, and it is now essential to the daily delivery of services to the Australian people across the country.

In fact, the first local government was established in South Australia—it was the City of Adelaide—and councils around Australia formed soon after that. I say that to point out that local government in fact predates federal government by some 60 years. Local government is part of the Australian landscape and has been almost since the time of the first settlement in this country. Many people I speak to are surprised to hear that local government predates the federal government and yet has effectively no legal status other than that afforded to it by each of the state and territory laws. It certainly is recognised within state constitutions, but recognition in state constitution does not give it the national recognition that local government is, quite rightfully, seeking.

There were propositions in both 1974 and 1988 to change the Australian Constitution in order to give local government the recognition it, quite rightly, deserves. In 1974, the proposal was to amend section 51 of the Constitution and related to the ability of the federal government to borrow money on behalf of local government. At the same time, there was a proposition to amend section 96 in very similar terms to what is being proposed now which would have enabled the federal government to directly fund local government. The 1974 proposition failed. The 1988 proposition was slightly different: it was about inserting a new section 119A into the Australian Constitution which effectively gave recognition to local government as a legitimate level of government in Australia in a similar way perhaps to the state constitutions. Again, that proposition failed.

So, 25 years later, we are attempting for the third time to recognise local government in the Australian Constitution. The member for Riverina quite rightly points out that this is an important issue and we do not want it to fail. That was very much at the forefront of the minds of committee members at the time we were deliberating on this issue.

The report follows a previous report that was headed by Justice Spigelman and an expert panel of some 17 other members who reported to the parliament at the end of 2011 and recommended, amongst other things, that a parliamentary committee pursue their recommendations. The recommendations—and I am simplifying them here—were effectively twofold. If you can get the bipartisan support of this parliament, the support of the state governments and the support of the Local Government Association and the recommendations they submitted as part of their proposition to go forward with the referendum, then you should proceed with it. The committee looked at those issues. It also heard from some experts in the field. It formed the conclusion that section 96 of the Australian Constitution 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 sees fit.

The additional words were 'or to any local government body formed by state or territory legislation'. That is the addition to section 96 which currently does not exist in that part of the Constitution.

The importance of what it says is that we can only fund those local governments that are formed in accordance with the laws of the state or the territory in which they exist. That is No. 1 and it is an important element of that change. The second part is that the federal government can directly fund those local government entities.

The issue of including local government in the Australian Constitution and giving it proper recognition has, I believe, got bipartisan support as a matter of principle. That is the message I am picking up loud and clear. The message I have been hearing right across Australia is that, generally, as a matter of principle, it is accepted. The issue is: how do you do it? You can include local government in the Australian Constitution simply by giving it some sort of symbolic recognition or you can actually do so in the form of words that have been proposed in the recommendation of the committee by specifically making reference to it in section 96. Symbolic recognition may be appropriate, but, quite frankly, I do not think that is the way to go. I would like to see specific reference to it.

We gave local government some form of symbolic recognition when in 2006 the Howard government in a bipartisan way in this parliament moved a resolution recognising the importance and existence of local government throughout Australia. But it was not given legal status in the same way that giving local government a seat at COAG meetings, which was also done in the nineties, gave local government a degree of respectability but did not give it any legitimate legal status. The only way we will ever do that is by including the right wording in the Australian Constitution. The wording proposed is similar to the wording proposed by the expert panel, which the parliamentary committee agreed was the best way to go. It agreed it was the best way to go because it also heard from experts in the field of dealing with the Australian Constitution and they agreed that it was the best way to go.

The fundamental difference between what is happening now and what happened 25 years ago and in 1974 is not only that local government, quite rightfully, believes that it should be recognised as a legitimate level of government in this country but because there was a court case, Pape v Commissioner of Taxation, in 2009. That court case effectively found that the Australian government does not have the authority to directly fund local government. So this issue is not simply about doing what we think is morally right; it is also about ensuring that the way this government and this country has operated for decades continues. Programs like Roads to Recovery, which the member for Riverina alluded to earlier, and other programs like the regional development programs, community infrastructure initiatives that we have seen in recent years and even direct services that are provided by local government to communities will be able to continue. That is the purpose of the changes that are being proposed now and it is important they get through as quickly as possible. It is no longer just something that would be nice to do; it is a matter of dealing with the issue because if we cannot then we have to deal with those funding problems that arise as a result of the Pape case.

The argument has been put that we can continue to fund local government through section 96 of the Constitution. However, that means all of the funding has to go through the states with conditions placed on the states that those funds will be used in accordance with the wishes and directions of the federal government. That means you have to deal with the states before allocating the funds, and that in turn makes the whole process much more cumbersome and adds another layer of bureaucracy to the process itself. That is a problem that I believe we will continue to encounter if the Constitution is not changed.

Questions arise relating to the timing, which the member for Riverina quite rightly raised in his remarks in the chamber. Those were matters that the committee rightly addressed in a very careful and considered way. We listened to the experts about the process that the parliament needs to go through before a referendum question can be put, even in September this year. It was considered that, whilst the timing may raise concerns to some, it is sufficient to enable us to go through all of those processes.

Unless a decision is made by this parliament that we will proceed with the referendum, none of the other steps will take place because everyone seems to be hanging back for someone to make the first move. Having made the first move and recommended that the referendum be held in conjunction with the federal election this year, it now means that every other sector—that is, the state governments and local governments around Australia—has a goal in mind and can work towards it. My understanding is that the local government sector across Australia generally has accepted that and is prepared to get behind a campaign that will enable the education program that has been suggested to be rolled out across Australia with respect to getting the people of Australia to understand what is behind this proposition. It is true that some of the states will never support this proposition. It is also true that if we do not get bipartisan support from this parliament to start with then the proposition will never get up.

For a constitutional question to succeed it needs not only to be passed by a majority of states but to be passed by a majority of voters across the whole of the country. So it is not easy. The member for Riverina rightly pointed out that only eight out of 44 propositions have ever succeeded when they were put to the Australian people. But it is possible. One of the successes occurred in the 1940s when a similar situation arose where it was a case of making a change to the Constitution not simply because it was the right thing to do but because if it was not done then it would impact on the way the government of the day could deliver its services. This is a very similar case. That was one of the arguments put very strongly by constitutional experts that addressed the committee.

We have a proposition before us and we have in principle support generally across the board—a couple of the states have indicated concerns but the others at this stage have not strongly indicated their position one way or the other. Given that we now have the Australian Local Government Association behind the proposition, we should now make every attempt to go through with the referendum question being put in September. The others, knowing that there is a proposition before them, will have to make some hard decisions. I believe they will do so and I believe those hard decisions will result in them supporting the proposition because it is the right thing to do and is the only way that we can effectively ensure the delivery of services which Australian people have now become accustomed to as a result of the way things have been funded over the last two or three decades.

With those comments I strongly urge members of this place to support the recommendation of the committee because this place needs to show leadership on this issue. If it does, my view is that that will be crucial as to whether the proposition gets up in September.

Debate adjourned.

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