Christopher Back (WA, Liberal Party) Share this | Hansard source

I remind the Senate that this proposal, the Constitution Alteration (Local Government) 2013 Bill, is to change the words of section 96 so that the parliament may grant financial assistance to any state, or any local government body formed by the law of a state, on such terms and conditions as the parliament sees fit. I urge all those who are vacillating on this issue to consider the words 'on such terms and conditions as the parliament sees fit'.

The Local Government Association, particularly the Western Australian Local Government Association, claim that this change will lead to minimal expansion of Commonwealth powers. I ask them to reflect on the fact that, under the Constitution at the moment, the Commonwealth government has no influence at all. Secondly, there is the issue of interference in the relationship between state and local government. I will address that as well.

First I will reflect briefly on some historical issues. I go back as far as 1897, when the then future first Prime Minister, Edmund Barton, was concerned about the federal structure created by the Constitution and the trend towards centralism. How right he proved to be. He recognised these dangers before our Federation came into place. These were his words at that time:

The revenue and the financial position of the various colonies would be so impaired and hampered that they would become municipalities instead of self-governing communities.

That situation has not changed.

I move forward to 1974. The then leader of the coalition, Mr Snedden, in campaigning against the Whitlam led referendum amendment, said:

Once that centralism is achieved, we will find that the grant of money will have a whole series of conditions attached to it which will deprive local government of its own freedom of action, and some bureaucrat in Canberra will decide the way in which local government ought to conduct its affairs.

How right he was then and how right he would be if he were alive and watching this debate today. As we know, then Prime Minister Whitlam was keen to do two things. One was to destroy the states and the other was to centralise power and ultimately remove local governments in favour of regions. Indeed, that point was affirmed by Senator Rhiannon only the other day in her contribution to this debate. I remind everyone that in 1974 the yes vote was merely 46.85 per cent, with only one state, and that was New South Wales, voting yes. We then go forward to 1988, when the yes vote dropped to 33.6 per cent, with no states at all favouring the referendum regarding local government. I dare say that will not change in 2013.

I go now to the question of state and local government relationships. People say to me that the relationship between states and local governments is broken. I say that you never, ever solve the issue of a disagreement with your wife by appealing to your mother-in-law. Those in Western Australia need just reflect on three areas: firstly, the dispute between the Barnett government and the federal government over GST allocation; secondly, the way in which Mr Barnett was able to stand up, alone amongst the state premiers, to then Prime Minister Rudd over the issue of health; and, thirdly, at this very moment the relationship between not only Mr Barnett now but other state premiers and territory leaders with Ms Gillard over education.

I ask local government to reflect on the question: what does a state have? A Premier has a crown law department, an Attorney-General, a Treasury and, in the case of WA particularly, royalties income. It takes that to withstand a federal government if it decides to exercise its powers. What possible hope would the Joondalup city council, the Nedlands city council, the Plantagenet council or the Mukinbudin council have against a federal government that wished to impose its will? I go to an article on the weekend about a letter from the Prime Minister to the Northern Territory. The headline was: 'PM to NT: reverse cuts and sign school plan or lose out'. That is the sort of power that the federal government exercises. As I made the point the other day, nothing in this section 96, as amended, guarantees one cent of funding for local government—not one cent. People need to understand that.

I now wish to go to commentary on the High Court. Barton himself made an observation about centralism. In the last few years, unfortunately for those of us from the states with smaller populations, we have seen an alarming trend of the High Court judges moving towards a centralist view. Only the other day, the recently retired Justice Heydon made the comment 'Stronger judicial personalities tend to push the weaker into decision.' Politics and personalities on the High Court are as abundant as they are here in the parliament, and, if local government thinks that the High Court will save it from an assault by federal government in the event this is passed, it can think again.

I go to the Nagle case in the High Court in 1992-93, in relation to an agency of which I was the chief executive officer, a case that we won in the Supreme Court in Western Australia and in the appeals court but that was overturned in the High Court. It went to a situation in which local governments were very severely bruised, as was my own agency. I will never forget Sir Francis Burt, the then Governor, having been the Chief Justice of the Supreme Court of Western Australia, saying to me at Rottnest Island—Nagle related to Rottnest: 'Chris, it's not going to help you very much, but this will go down in history as the worst decision the High Court will ever make.' Indeed it was, and it had a profound effect on local government. So, if local government think that the High Court will be their saviour, they need to think again on that particular circumstance. I reflect on that comment of Justice Heydon's: 'Stronger judicial personalities tend to push the weaker into decision.' If that decision is not in favour of local government, then they have no further grounds for appeal.

I go to funding for this referendum. Once again the Labor government is proposing to break new ground, by not equally funding both sides of the argument. That is a first in constitutional history and it is regrettable—it is wrong and it is duplicitous. In 1999 Mr Howard, whilst an arch monarchist, guaranteed equal funding to the yes and no cases in the republican debate. What was the basis on which Mr Albanese in the other place the other day announced the inequitable funding of some $20 million versus half a million dollars? It was on the apparent basis of how the votes went in the House. The fact that they were not debating the yes and no case seemed to be irrelevant to Mr Albanese, but what is even more shocking is that he completely and utterly overlooked section 128 of the Constitution, which clearly relates to both houses. Mr Albanese seems to forget there is the Senate—as have Labor and other senators. They have come in behind Mr Albanese on the issue of the number of votes.

As I recall it, we have not even voted on this matter in this place, and for Mr Albanese to turn around and say they will inequitably fund on that basis pressures the Senate. Being in the states house, I am at a loss to understand how it is possible that senators on the other side, and the Greens political party, could agree with Mr Albanese. I trust it will become the dominant issue—the issue will not be local government; the issue will be the decision of the Labor Party not to equally fund each case. Local government is already coming under criticism simply because they have allocated funds. I read an article the other day which told of a woman in Victoria who was complaining that a childminding centre had to close in her local government area and the equivalent sum of money was being put into the yes campaign. Local government will pay for the fact that they are using ratepayers' money so badly.

I turn to the Grants Commission. We know we have six states and we have two territories, and look at the funding disputes and the funding debates that go on between the Commonwealth and the states and territories. Can anybody imagine not eight jurisdictions but 560 local governments debating funding? How are allocations of funds all going to match up, in a circumstance, I repeat, in which any modification of section 96, which would include local government funding, includes no guarantee at all of road funding? People talk about section 96 and the allocation of funds for roads. It goes back 90 years, to 1923, when the Commonwealth first started allocating funds for roads. They can go on doing it—as I indicated in my contribution at the beginning of the speech on Wednesday, there is no good reason why that would stop.

In summary, it has long been my experience in rural Australia—rural Western Australia and Tasmania particularly—that decisions for local communities are best made closest to the community which requires the service and is most impacted by it. That does not come with decisions by a bureaucrat in Canberra; it comes about as a result of decisions at the local government level. If there is a problem between a state and a local government, sort it out locally. Every state deals in its constitution with local government. The recommendation of the Select Committee on Federation, on which I proudly sat, made this recommendation:

Pending the outcome of this inquiry, the committee recommends that mechanisms other than constitutional amendment, perhaps by way of agreement … be explored to place Commonwealth funding …

Finally, the Spiegelman committee did not recommend that this constitutional alteration proceed at this time.