David Bushby (Tasmania, Liberal Party) Share this | Hansard source

I rise to take note of the Joint Select Committee on Constitutional Recognition of Local Government final report on the majority finding of the Expert Panel on Constitutional Recognition of Local Government: the case for financial recognition, the likelihood of success and lessons from the history of constitutional referenda. As deputy chair of this committee, I would like to take this opportunity to thank the secretariat for the hard work that they did, which included travelling to Sydney twice for two hearings. I would also like to thank the chair of the committee, Michelle Rowland. I understand it was her first time chairing a committee, and she did an excellent job. With that, I do not necessarily agree with all her findings in the final report but, as a chair, she did a very fair and reasonable job and I acknowledge that. I would also like to thank all the fellow committee members, all those who submitted to the inquiry and the witnesses who attended at the two hearings and assisted the committee with its deliberations.

Throughout the parliamentary inquiry process into the constitutional recognition of local government, coalition members and senators were astonished by the government's extraordinary lack of action to put in place any of the steps that would lead to the pre-conditions for success that were highlighted by witnesses to the committee and also by the government's very own expert panel set up to look at these issues. I do not know whether this is just another case of policy on the run—and that would not be surprising given this government's past record—or maybe a cynical attempt to fulfil an election promise to hold a referendum during this parliament, with a totally cavalier attitude about the question itself and whether it gets up or not. But, having worked through the inquiry process, I suspect the latter was probably the case, although I acknowledge that it is entirely possible that this is just another example of a totally dysfunctional government—a government which generally is always paying lip service to the politics of an issue, with an eye on the 24-hour news cycle, rather than focusing on the actual end outcomes for stakeholders and the benefits of good policy for the Australian people at large.

Despite this, the coalition has approached the issues considered by the committee on their merits. The coalition has indicated support for action to address High Court introduced uncertainty in respect of direct Commonwealth to local government funding and that constitutional change provides a pathway to address that uncertainty. This support for a constitutional fix was always provided subject to consideration of the specific change to be proposed by the government and to that change being limited to the removal of the question of constitutional validity in relation to direct Commonwealth funding, but extending no further.

Coalition support for action to address funding issues was also offered in the expectation that all practical and reasonable steps would be taken to ensure that the Australian population was well educated on the referendum question and in a position to make an informed choice, because, as past history in this country shows, a disengaged population with little understanding of the issues around a referendum question tends to vote no—a fact to be particularly mindful of, considering a similar question has already failed twice before at referendum, once in 1974 and again in 1988.

Coalition members of the committee were particularly mindful of the term of reference which called for an assessment of the 'likelihood of success of a referendum'. But, primarily because of the lack of action taken by the government to pursue the expert panel recommended course of action, the committee had to make its final findings without the benefit of key information that would enable us to make such an assessment. There is no doubt that the pre-conditions for success, as outlined by the expert panel and put forward by the Australian Local Government Association, have not been established. To proceed to a referendum on this issue without those pre-conditions for success being at least substantially met will not only result in a decreased likelihood of success but also involve the spending of many millions of taxpayer dollars on a referendum that was never properly considered.

The Labor government's Expert Panel into the Constitutional Recognition of Local Government stated in its final report, which was delivered in late 2011, that:

The majority of panel members support a referendum in 2013 subject to two conditions: first, that the Commonwealth negotiate with the States to achieve their support for the financial recognition option; and second, that the Commonwealth adopt steps suggested by ALGA necessary to achieve informed and positive public engagement with the issue, as set out in the section of this report on the concerns about a failed referendum.

As mentioned, the government's expert panel report was released in December 2011—at the time, around two years prior to the latest possible election date. Therefore, the recommendation of that report could and should have formed a starting point for such negotiations and public education campaigns at that time. Instead, we have a situation where this Labor government sat on the report for over 18 months.

The committee's preliminary report was tabled on 24 January this year. All members of the committee at that time stressed the need for urgent action to address these pre-conditions for success. However, evidence received at the committee's second hearing shows that the minister did not write to state and territory governments until sometime around mid-February—around three weeks after the delivery of the preliminary report—and, in doing so, requested the states and territories to advise their position by 4 March 2013. This meant that the government expected the committee to finalise recommendations for the final report prior to obtaining all responses from the state and territory governments On the back of the almost two-year delay in setting up this committee or taking any other step recommended by the expert panel, this further delay is again inexplicable given the importance the expert panel and all members of this committee placed on the need to obtain and understand the views of the states.

It is important to remember that conventional wisdom, backed up by evidence received by the committee, is that opposition by a majority of state governments vastly increases the likelihood a referendum will fail. But the government, despite having recommended wording from the expert panel in 2011, failed to engage with the states on that wording, to test their response and to negotiate and work with them with a view to maximising the prospect of support.    On the contrary, the government approach suggests the support of the states was irrelevant to their objectives, which appear to be more about being able to say that they held a referendum than concern about the actual result.

Despite the inexplicable delays by the minister in seeking to meaningfully engage with the states on this issue, state governments are known to have made previous statements and comments—including in submissions to this inquiry—that are, to some degree, indicative of their thoughts on the referendum question. Despite broad acceptance by states of the principle of recognition to clarify the Commonwealth/local government financial status, known comments by all states include, at least to some extent, qualifications based on concerns regarding the potential impact of constitutional change. In some states, this has manifested as a reluctance to absolutely commit pending engagement on the actual question and, in others, a stronger rejection unless all concerns can be addressed.

Their concerns seem mostly to relate to the potential impact of proposed constitutional change on state governments' relationships with local governments but also extend to the potential impact on state powers.

For example, one state that forwarded correspondence—which was not able, due to timing, to be accepted as a submission—was concerned that the proposed amendment might later be found by the High Court to give rise to an implied constitutional obligation on the states to maintain particular systems of local government. Evidence received, particularly by constitutional experts at the first hearing, suggested that such concerns may hold some basis. If the concerns of some state governments are justified, the acceptance of the proposed constitutional change could have an impact that extended further than intended, and this would be of concern to coalition members of the committee.

As mentioned, the coalition's support of appropriate financial recognition of local government in the Australian Constitution is limited to removing the question of constitutional validity in relation to direct Commonwealth funding. No coalition undertaking has been provided to support change that extends, directly or indirectly, any further than this and, from the perspective of the coalition members of the committee, change that extended further than that would fundamentally impact the likelihood of their support for that change.

The second of the preconditions for success put forward by the expert panel relates to the desirability of decisions made by Australians in relation to potential changes to the Constitution being made on as fully informed a basis as possible. History shows that where a proposed change is worthy of support a well-informed Australian public will be more likely to support it, and if a proposed change has potential pitfalls a well-informed public will be more likely to identify those problems and vote accordingly. This notion is supported by the constitutional experts who appeared before the committee. Yet, again, no work has been done despite clear recommendations by the expert panel.

In addition to concerns regarding hard campaigning on the issues pertaining to the referendum, the government's inaction now presents challenges for the actual administration of the referendum. Officers from the Australian Electoral Commission appearing before the committee noted that the guidelines for information advertising would not be able to be met, as the requirement of 27 weeks would be impossible to achieve given the date of this report and the nominated election date. We on this side of the chamber note that the chair's preliminary report recommended action be taken immediately to put in place the necessary steps to hold the referendum in conjunction with the 2013 federal election. Even then we held concerns that the time was insufficient, but we remained open to the prospect that such immediate action may address those concerns.

However, it is clear that, as with so many things, this government has failed to act. Urgent and immediate action has not occurred, and as such it is my view and the view of the majority of the coalition members of the committee that there is no longer sufficient time to get everything in order to hold a referendum with the 2013 election.

Question agreed to.