THE Government should abandon its referendum to recognise local government. It should learn the lessons of history. This week, it failed to get unqualified support from the Opposition, so the proposition is doomed.
Only eight of 44 proposals have been approved in the 113 years since federation. For success you need a long education campaign and support from both sides of politics federally and in all states. Without it, slightest scare campaign, however misguided, will derail a proposal, however sound it might be.
It is idiotic to expect a referendum to get through when we do not even know the wording of the constitutional change a mere four months out from the vote. The Government should have been working on this three years ago.
The Government is under-estimating the apathy, stupidity and susceptibility of the electorate.
To see the level of support needed, let’s look at the eight approved proposals. Seven got a majority in all states. The other one got a majority in five of the six states.
Six failed referendums got a majority of voters overall but failed because they did not get a majority of states. So mere appeal to a sensible majority is not enough – you have to carry the ignorant, apathetic and easily frazzled voters in the lower-population states.
This proposal, moreover, is unnecessary. Its aim is to satisfy a promise given to the Independents in return for supporting Labor after the last election. Well, that has no consequence with the next election only a few months away.
The other justification is to put beyond doubt the Commonwealth’s ability to give money directly to local government. The power was thrown into doubt by the High Court in last year’s case challenging the Government’s school chaplain program.
The court said grants of money directly to schools were invalid without legislation, and even then might be invalid because the Commonwealth could only spend money on “”the purposes of the Commonwealth”. The “purposes of the Commonwealth” might be restricted to the Commonwealth’s list of constitutional powers, mainly set out in Section 51 of the Constitution – things like defence, foreign affairs, currency, lighthouses and so on.
But this is a furphy and the proof is that the chaplaincy program continues.
Of course, the chaplaincy program itself is an appalling waste of Commonwealth money when students need mathematics and science not religion.
Incidentally, the major challenge to the chaplaincy program – that the Commonwealth’s legislative power is limited when it comes to religion — failed.
The Commonwealth does not need a referendum to overcome the funding problem. As it has done with other constitutional problems, it can carefully legislate its way around them.
In this case it could turn to Section 96 of the Constitution which says: “the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.”
The Parliament could easily legislate to provide funds to any state on condition that the state has a system of democratic local government and that the money goes to the local government for the purposes that the Commonwealth dictates.
It could be backed up with a clause saying that if the state does not deliver the money to local government its other Commonwealth funding to that state will be deducted by that amount.
Ok, so the Commonwealth cannot put the cheque directly into the local government’s bank account, but it can make sure it ultimately goes there.
History tells us further that this proposal is unlikely to get up.
Proposals to recognise local government have been defeated twice before – in 1974 and 1988.
So it is likely to be defeated again, just like the other repeat referendums on various topics: to give the Commonwealth power over economic matters like prices, income, monopolies and industrial relations; to provide for simultaneous election; the remove the nexus between Senate numbers and numbers in the House of Representatives; and to provide for various individual rights such as one-vote one value.
If the Australian people say No once, they usually say No again. And almost invariably proposals to increase Commonwealth power, like this one, fail.
We have not got the wording yet, but the proposition has severe constitutional difficulty.
At present local government is a creature of state legislation. State Parliaments create local government. And state ministers administer it. At the stroke of a state parliament’s legislative remit, local government can be abolished or restricted in any state or any local-government area. What might happen if a state parliament (dominated by the executive government) passed a law saying that a local government must hand over to the state government all funds given to it by the Commonwealth, and if it does not the local council will be dismissed and the area run directly from the state capital?
If this is overcome by the as-yet-unworded proposal for constitutional change saying that everyone has a right to local government or that local governments cannot be regulated or dismissed by state governments, the can of constitutional worms becomes too big for a mere four-month discussion.
The real loser here will be the cause of sensible constitutional change. More important symbolic and machinery changes are needed to our Constitution. When this goes down, no government will dare try another referendum for another decade or two.
Of course, the essential problem here is that the whole process of constitutional change is flawed. The Constitution provides that referendums can only be initiated by an Act of Federal Parliament – by federal politicians who have shown an almost unremitting capacity to put up unacceptable proposals.
Not only that, even the successful referendums have almost all been defective or unnecessary:
+ Changing the election cycle of Senate terms in 1906 from 1 January to 1 July has caused strife through subsequent electoral cycles.
+ The Commonwealth did not need the 1910 or 1928 referendum to take over state debts (who was going to argue, and in any event Section 96 would have supported it).
+ The Commonwealth could have handed out social security without the 1946 referendum, using Section 96 and the obvious human factor that no-one will challenge a hand-out.
+ The 1967 referendum on Indigenous people looked fine, but it also enabled the Commonwealth to make laws with respect to race that DISADVANTAGED as well as advantaged a race, as with the Howard intervention.
+ The 1977 changes on Senate vacancies could have been done with legislation; giving the vote in referendums to the territories was meaningless; and making judges retire at 70 is now proven to be a silly waste as changes to health and fitness allow people to work well beyond age 70.
If you want a really meaningful constitutional change, it would be to remove the stranglehold of federal politicians over the process of constitutional change. They have had a 113-year history of making an utter hash of it. And this year’s referendum will be no exception.
CRISPIN HULL
This article first appeared in The Canberra Times on 18 May 2013.