Constitutional
Recognition of Local Government and Australian Public Policy:
An Analysis
----S M Mehedi Hasan
Introduction:
Staying
at the bottom of the governance pillar, local governments in Australia
traditionally provide a short range of local services, financed by the states/
territory and Commonwealth governments
mixed with property taxes, fees and charges;but poorly caricatured
in the expression ‘roads, rates and rubbish’( Dollery ,Wallis and Allan 2006, 556).Though local governments can
play an important role in federal democracy, Australian public policy failed to
recognize constitutionally to give them strong feet to stand keeping states’
influences aside. Insertion of provisions in the Commonwealth constitution
giving recognition of local governments with considerable financial base can
make something positive to LGs, to the citizens and , above all, federal
democracy in Australia .The first part of this paper gives a brief note on the History of
local government in Australia and their major functions; the second part
describes their level of dependence and constitutional status; the third part
describes how local governments faced setback due to negligence by Australian
public policy; and final part analyzes how constitutional recognition make the
local governments different from the present position.
A Brief History of Local Government
in Australia and the Reasons behind States’ Overpowering Involvement:
In Australia, the
most common kinds of local governments are city councils in metropolitan areas and regional urban ‘hubs’/shire councils in
rural areas( Megarrity 2011,1). Unlike other parts of the world local
governments came into being very slowly in Australia. Adelaide is said to have
established first LG in Australia in 1840, followed by Melbourne and Sydney in
1842( Jones 1984, cited in Megarrity2011,3). The establishment of LG started to grow rapidly after the
grant of self- government by the British Colonizer in 1850 and this increase of local authorities were due to
‘activeencouragement of the six colonial governments’, but the major expansion took place in the years
from 1945 to 2000( Balmer
1989,wood 1984, Jones 1981; Cited in Megarrity 2011,3). It was due to rising
demand from the community to receive quality services after the World War II. But,
since 2000, a note of
dissatisfaction has been lurking within the local governments for their present status because state governments in the recent past
have forced numerous councils to amalgamate in the name of economic efficiency,
and even the state government of Queensland reduced the number of councils from
157 to 73 ( Prasser 2007, cited in
Megarrity 2011, p.5) .Presently, Australia has 565 councils, 6600
councilors ( ALGA, www.alga.asn.au, cited in Perche 2014 , Lecture 11).It
should be mentioned that a stronger tradition of LG was initiated in the
nineteenth century in Victoria out of local democratic spirit, not by central
order( Hartwich 2009,4) .
There was a primary and weak
structure of local governments at the time of federation due to historical
facts in Australia because the Commonwealth Constitution did not have any
provision. As a result, LGs remained as an area of states’ responsibility(
Hartwich 2009,4).For instance, in NSW, local government got institutionalized after
the enactment of Local Government Act
1906 .Prior to that the only method of establishing LG authorities in NSW
was on a voluntary basis under the Municipalities
Act(NSW) 1858 (Hartwich 2009,4).
Though the story establishing local
governments in different states of Australia varies from each other, the
general principle is shared by all the states. The starting of their respective
LGs was ‘difficult and slow’ because around the time of federation the states
were virtually busy with ‘organizing most aspects of public life’; and they had
neither time nor legal possibility nor the political will to lay strong
foundation for independent local governments in Australia( Hartwich 2009,4).
Over the course of twentieth and early
twenty first centuries, local governments have not been strengthened in
Australia. State governments started promulgation of law to set base of a
formalized structure of LG which reconfirmed the view that local governments
are ‘creature of the state’( Hartwich 2009,5) . In truth, this view was
articulated in the Sydney Municipal
Council v commonwealth 1904
‘The
state being the repository of the whole executive and legislative powers of the community, may create subordinate
bodies , such as municipalities, hand
over to them the care of local
interests, and give them such powers….as
may be necessary for the
proper care of these interests’.
This statement leaves no room for
doubt that states were ultimately in charge of local governments in Australia,
to decide whether there would be any local government, and what should be mode of
operation of local governments.
Major Functions of LG in Australia:
Over
the past few decades Australian citizens have witnessed a significant
transformation in the pattern of service
provision by local governments ,away from their traditional narrow emphasis on
‘services to property’ towards a wide ‘services to people’ approach( Dollery ,
Wallis and Allan 2006, 553- 54).Local governments came to a position of providing greater
ranges of services after legislative reforms to the different states and
territory parliament in 1990s, which enabled the LGs with more flexibility ‘to
change both the way of operation and
provision of various services’ ( Dollery , Wallis and Allan 2006, 555).
Local government authorities provide
services to a particular geographically-defined community, covering a broad
range of civic responsibilities, from infrastructure to human services and their
responsibilities keep growing according to community demand. By employing or
contracting staffs each council provide local government services which is guided
by the decisions of elected councilors under the prime leadership by a mayor. The councilors represent their community at
council meetings and deliver decision to the citizens. Besides, they are
assigned to develop council policies and make decisions related to those
policies ( Magarrity 2011, 1).
Local governments have some regulatory
functions which is difficult for a state government to perform for their
diverse and local nature such asplanning
and development approval,inspection of buildings, pet management, car parking,
health inspection food inspection , environmental management (Megarrity 2011,2;
Dollery ,Wallis and Allan 2006, 556). The Hawker Report( 2003,9; cited in
Dollery ,Wallis and Allan 2006, 556) finds an ‘expansion of the roles beyond
those traditionally delivered by the local sector’ because it deals nowadays
more crucial social issues like alcohol and drug problems.
Further, local governments mostly
prioritize public health and sanitation of the local community such as drainage
and waste management, immunization, maintenance public toilets, water coolers,
local streets, walkways and roads. In addition, they are assigned to provide child care, recreational as well as establish
public libraries in the locality when depending on wealth and means of the
council. Besides, promotion of tourism and
hosting of ‘special events’ are also quite common dutiesto improve local
‘commercial benefits’ or community engagement( Magarrity 2011, 2).
Jason Arditi ( 2008, cited in
Perche 2014, Lecture 11) listed a series of tasks done by the local governments
in Australia which includes, community
services and facilities, health, housing, transport, economic development, recreation
and culture, industrial affairs , public safety, environment, management of
public land and regulation (including
planning).
Dependence
of Local Government:
Since there is no mention in Commonwealth Constitution, local
governments naturally falls to state government under residual powers.Their
entities depends completely on the will the state governments because LGs can
be dissolved, dismissed, amalgamated and get their boundaries changed by the
state governments ( Perche 2014, lecture 11 ). In Australia local governments are
financially weak because the share of total taxation is below 3%(Productivity
Commission 2008 , 28 & 37, cited in Hartwich 2009,2).Because local government revenue is very limited in terms
of population and subject to restriction on how much they can charge, they
virtually dependent on the subsidies received from federal and state governments.
These subsidies are crucial needfor the
country shires that ‘tend be large in area but small in terms of population’ (Megarrity
2011,2).Almost seventeen percent of their revenues come from the f 0ederal and
states/ territory governments in the form of grants( Productivity Commission
2008, cited in Perche 2014, Lecture 11).
The state and territory governments
can also override council decisions ( Smith 2010,17; cited in Magarrity
2011,1). The LGs have virtually no
autonomy from the state governments and sometimes they cannot have control over
own responsibilities due to intervention by the state governments. Consequently,
due to long standing negligence to LGs, many LG representatives want the Commonwealth
government as their ally both in funding and assisting them in achieving
greater autonomy and constitutional status as the lowest third tier of
government. ( Megarrity 2011,p 6).
Constitutional Status of LG in
Australia:
The
Australian Constitution does not have any provision of local government and the
structure of local government is ‘decided at the state level’(Hartwich 2009,5).
All states have inserted provisions giving recognition to their respective
local government, on the basis of a recommendation by the Australian
Constitutional Convention (Saunders2005, 54; cited in Hartwich 2009, 5).The
situation in the territories is different and more complicated( Hartwich
2009,5).But the recognition in the states’ constitutions is not strong enough
to keep LGs independent because that can be changed by a simple majority of
state parliament. For instance, in NSW Constitution, there is recognition of LG
(s51) but it does ensure perfect guarantee of the continuing role of LG(Twomey
2004, 37).
A
brief note on the provisions for local government in state/ territory
constitution as per Hartwich’s( 2009,5-6) notion is given below:
Victoria:
The Constitution Act of Victoria
states that ‘Local Government is distinct and essential tier of government
consisting of democratically elected Councils’ (s74A).Section 74A(2) makes it
possible to establish public statutory bodies for areas which are not ‘
significantly and permanently populated’. But there is no details about tasks
and taxes of LG .
New South Wales: The
NSW Constitution Act states that ‘a
system of local government for the State’ should be in existence. But there is
no specific clue about how the ‘system’ would work, whether the LG
representatives should be appointed or elected, allocation of tasks to LG
or source of revenue or taxation. This recognition is too weak to give
protection of LG against the decision of the state government regardingboundary
changes, dismissal or amalgamation.
Queensland:Section
70 of the Constitution of Queensland ensures existence of LGs . Here LG bodies are
elected under s71 (1). But ss (3) states in case of dismissal of
councilor or mayor, the parliament can appoint administrators. Though powers
and functions of LGs are not mentioned in the constitution these are determined
by another Act of the state parliament
South Australia: The
provision of LG in the Constitution of
South Australia is stated in section 64A which assumes a democratic
process. The parliament holds power to set framework for LG (ss2) and
guarantees its LG system as the third tier of government (ss 3) until it is
abolished by the parliament with majority from the both houses. Like others, it
does not provide protection against dismissal and allocation of job and revenue
sources are not mentioned.
Western Australia: Section
52 of the Constitution Act of Western
Australia states that there will be elected local governing bodies. It also
does not mention about the powers, functions and fiscal issues and but left to further
legislation.
Northern Territory: NT
does not have any formal constitution and it is governed under Northern
Territory (Self –Government) Act 1978.But this act does not include any provision
on LG and constitutional protection of LGs is non-existent(
Hartwich 2009,6) . However, the presence of LG in the Northern Territory dates
back the formation of the Northern Territory and its existence became a reality
despite absence of ‘formal status’ (LANT 1995, cited in Hartwich 2009, 6).
Tasmania:Section
45A of the Constitution Act of Tasmania ensures a system of LG which almost
similar to that of Western Australia. The only difference to WA is that it refers ‘municipal councils’ in
place of ‘local governing bodies’, but it is simply a ‘semantic and not a
substantial difference’( Harwich 2009, 6).
Australian Capital Territory:
Like NT Australian Capital does not have any formal constitution and its Self Government Act also does not have
any provision of LG. To mention, the functions of LG are done by the Territory
Government directly .
As
we see here, though the Australian states recognize LG in their constitution,
these recognition virtually cannot guarantee protection from state government because ‘they are not entrenched in
the Constitution’( Hartwich 2009,7). In case of WA and Tasmania we see clear
mentions of elected bodies, whereas in other states there are options for
appointing administrators by the states under special circumstances .None of
the state constitution has provision for allocation of tasks or fiscal sources
of LGs. These are left to general Acts of State Parliaments. According to
Hartwich (2009,70), the state constitution have only ‘confirmed the status quo
of a master-servant relationship between the state and local governments’.
Has local government been too long
neglected in Australian public policy?
Since
there is no provision for local government in the Australian Constitution, the
federal government is bound to give subsidies to the LGs via the state
governments, with the help of liberal interpretation of s96.
96.‘
During a period of ten years after the establishment of the Commonwealth and
thereafter until the Parliament otherwise provides, the Parliament may grant
financial assistance to any State on such terms and conditions as the
Parliament sees fit’.
To
enshrine a direct financial connectivity between the Commonwealth and the LGs,
a referendum was launched by the Whitlam Government in 1974 but the proposal
was rejected by the Australian public (Yes vote 46.85%). Subsequently, another
referendum in 1988 was held by Hawke Government to give constitutional
recognition to LG by the Commonwealth. It was a proposal for insertion of a new
section (119A).
The
proposed section was:
[119A]
‘Each State shall provide for the establishment and continuance of a system of
local government, with local government bodies elected in accordance with the
laws of the State and empowered to administer, and to make by-laws for, their
respective areas in accordance with the laws of the State’.
But it was also rejected by people with only
33.61% voted YES.
In
spite of people’s rejection in the referenda, the Commonwealth Government came
forward to advance LGs. In 1990s there was a ‘growth in prominence of the
Australian Local government Association( ALGA) as a powerful national
representative of local government interests’( Megarrity 2011,12) because
Keating government (1991-96) took initiative to make the President of ALGA
member of Council of Australian Governments (COAG), where the all the state
premiers are members and is chaired by the Prime Minister. It gave a great
chance to LGs to discuss with other tiers of government on matters of national
importance (Megarrity 2011, 12) .
Further,
Commonwealth support for LGs continued when Howard Government was in power
(1996-2007). An important initiative taken by Howard Government was to provide
funds directly for construction, maintenance and improvement of local roads. Started
in 2000, almost $1.2 billion was spent on Roads by May 2005 and subsequently $1.23
billion was committed for the 2005-06 to 2008-09 fiscal years( DRTS, Annual
Report 2004-05 cited in Megarrity 2011,12)As this program benefited much ,
Judith Brett (2004, 27) commented,
‘Built into the notion of what it
was to be an Australian was an idea of shared access
to basic services, a shared
minimum standard of living, no matter where
you lived’.
This
scheme was successfully completed without state involvement and local decision
making aided councils to implement the projects as per own priorities (DTRS
2006, 9).
Support for LGs continued when Rudd Government took office in
2007.He created Council of Australian Local Government (CALG) that met for the
first time on November 18, 2008. Representatives from 565 local councils and
shires, and representative of other LG institutes met in Canberra with the
Commonwealth Government to negotiate local government issues at CALG. An
important focus of CALG was ‘infrastructure
needs for major cities’ in future ( Hartwich 2011,14) The Rudd Government also supported local government with its plan to tackle the Global Financial Crisis through public spending, for which local
council projects were subsequently allocated fund along with support for Howard’s
program for ‘Roads to Recovery’ (Prasser 2008,58, Albanese
2010,5; cited in Hartwich 2011,14).
In the recent past the idea of recognition of local government
in the Constitution got speed for strongly two reasons. Firstly, to
fulfill a promise that Prime Minister Julia Gillard made to three MPs
(Two Independent one Green) after 2010
election; as part of their power-sharing deal. Secondly, two High Court
verdicts on the Pape (2009) and Williams (2012) cases raised
question about the constitutional support for the Commonwealth’s direct funding
to local government. The proposed amendment aimed at removing questions and doubts on constitutional
validity and wanted to fund directly ‘on a firm constitutional footing’(http://www.gtcentre.unsw.edu.au/ 2013 Local Government
Referendum , accessed 25 Nov 2014).
In May 2013, Julia
Gillard government announced the referendum would be held ‘in conjunction with
the federal election’ on September 14 and it was to amend s96 of the Constitution
so that it reads (new words underlined):
Section 96.‘During a period of ten years after the
establishment of the Commonwealth and thereafter until the Parliament otherwise
provides, the Parliament may grant financial assistance to any State, or to
any local government body formed by a law of a State, on such terms and
conditions as the Parliament thinks fit’.
But
when Prime Minister Kevin Rudd announced that the election would be held on 7
September 2013, this effectively postponed the referendum until the
next parliamentary term.
Because of a combination of constitutional and electoral rules, the
earliest date, on which the referendum was to be held, went in hibernation. The
Abbott government has not yet announced whether it intends to
hold the referendum or not.
All
these incidents prove that local government has still been neglected in
Australian public policy, though there were some positive movements with
failure to take it forward in the last four decades.
Can constitutional recognition of local
government make a difference?
Recognition
of LG in the Australian Constitution was, is and will be in difficulty.
Hartwich (2009,7) says that ‘adding a bare recognition of local government to
the Constitution would be symbolic at best and entirely meaningless at worst’
because it will not bring any to change to ‘the balance of power’ and local governments will remain in the hands of
state governments . For instance, if the proposed amendment in 1988 had been accepted,
it would have such symbolic effect, as it read:
‘Each state shall provide for the
establishment and continuance of a system of local government bodies elected in
accordance with the laws of the state and empowered
to administer, and make by
laws for, their respective areas in accordance
with the laws of the State’.
The
insertion of this clause would not prevent the states from dissolving of
dismissing the councils whenever wanted through parliaments. However, this
inclusion would allow the commonwealth government to deal with the affairs of
the LGs if needed directly. But the practice is that, since the enactment of
Local Government financial Assistance Act 1975, the states act as ‘conduits’
for commonwealth grants for local governments (Hartwich 2009, 7).
Further, there might be a danger of
commonwealth intervention over states’ affairs local government due to
interpretation by the High Court judges appointed by the commonwealth executives,
and eventually it would lead to intergovernmental conflicts, hampering federal
-state relationship.
Constitutional
recognition of LGs can‘alter the balance of power between the local authorities
and the states, and the consequences of this change could well turn out to be problematic’(Hartwich
2009, 8) and even non -fiscal matters may lead to anomalies. Without
commonwealth recognition the states have still some degree control over LGs.
But, when the commonwealth recognition is established, the states will lose
their control over LGs because of undue interference of the federal government,
which would raise conflict of interests.
Constitutional
recognition would be a fragile exercise if nothing gets changed in the
relationship between the federal, the states and the LGs. If the symbolic
recognition keeps the LGs as the creatures of the states as it is now, then
achievement would be little by simply mentioning local government in the
constitution. In that case a wider recognition is required as found in Germany:
“Municipalities must be guaranteed
the right to regulate all local affairs on their own responsibility, within the limits
prescribed by the laws…The guarantee
of self-government shall extent to the
bases of financial autonomy; these bases shall include the right of
municipalities to a source of tax
revenues based upon economic ability
and the right to establish the rates which
theses sources shall be taxed”
[Article 28(2), Constitution of Germany,
cited in Hartwich 2009, 8].
The
German constitution also guarantees sufficient fund bases for LGs under article
106.Such provisions empower LGs to a great extent and ensure self-governance in
Germany. In Australian context, commonwealth recognition for LGs needs to
include such provisions for self- governance in real sense.
There
are dangers of commonwealth recognition to provide financial assistance to LGs
directly in Australia because it will only strengthen the Commonwealth
weakening the states; and LGs may get a new harsh boss in place of present
moderate boss. Its result can be perverse when the real intention of
recognition would be to ‘promote subsidiarity’ ( Hartwich 2009,9).
To
give an effective and meaningful protection of LGs , it would rather be better
to ‘entrench it in the states’ constitutions. For instance, the constitutions
could impose embargos on the changes of the sections dealing with LGs so as to
avoid undue amendments disfavoring LGs independence or it can ‘require a
referendum or parliamentary two thirds majorityfor any changes to the sections’
(Hartwich 2009,9) regarding local governments.
The
provision of appointing administrator in the local authorities under special
circumstances made the LGs vulnerable to the wish of the state governments. If
perfect federal recognition of LGs is achieved, elected local bodies in
Australia would overcome this vulnerability of getting sacked or intentional
replacement by the states governments, making a considerable difference from
the present position.
The constitutional recognition of LGs may ensure
protection from dissolving and amalgamation by the capricious decision of the
state governments. The state/territory government will take time to decide upon
dissolution or amalgamation before taking such decision pondering over commonwealth
recognition which will, ultimately, strengthen the position of LGs. It will
also protect the LGs from undesired dismissal and administrative oversight from
the state/ territory governments. Therefore, though commonwealth recognition
may alter balance of power between state and the federal government, a check
and balance position can be achieved between the states and the LGs.
A
recent evidence of a severe blow on local government is the Sydney’s enrollment
of 80,000 businesses for compulsory voting in the coming council election in
2016.Under the proposed changes to the City of Sydney Act 1988;it is a move to
undermine Clover Moore’s on the mayoral post in the coming polls. The NSW
government designed the plot that would ‘flood the city of Sydney’s electoral
roll with businesses, which would have up to two votes each’ (The Sydney
Morning Herald August 12, 2014).
According to Sydney Lord Mayor Clover Moore , the business voting bill is
‘the state government ploy to take over the city’ because it is generally
believed that the business vote is more likely to favor liberal councilor
Chritine Forster , sister of Prime Minister Tonny Abott, and businessman Edward
Mandla . The NSW government is backing the Shooter and Fishers party upon this
bill aiming at the Lord Mayor in Office (The Daily Telegraph, August 12, 2014).
Clover Moore termed it as ‘an attempt to manipulate democracy’ and expressed
her concern that NSW government had to
change the law to get rid of her and no
one has been consulted with on the proposed Bill and secretly ‘concocted between
the shooters and fishers and the Liberal Party’(The Daily telegraph, August 12
,2014).
According the present systems,
businesses are required to re-enroll for every election and were not forced to
cast their votes. But in the proposed system
it would be mandatory for them to cast their votes. (The Daily telegraph, August 12 ,2014). It is obvious
that NSW Government attempts to undermine a key principle of Australian
democracy – ‘one vote, one value’, and it is a breach of integrity of NSW
election processes to serve vested interests aiming at taking over the city
council.
But the commonwealth government has little to do with the
issue since there is no provision in the Commonwealth Constitution to save the
Sydney Lord Mayor from conspiracy of the NSW government. If there were any
provision in the Commonwealth Constitution, intervention was possible to
protect local government from the clutches of state governments like NSW.
Conclusion:
The question how local government
would work has often revolved around the role state/ territory governments and
commonwealth government. The question whether recognition of local government
in the federal constitution would help achieve independence from states or lead
them to a new powerful superior is yet to resolve. But the provisions with
greater financial capability like that of Germany can make a positive
difference through Commonwealth recognition to local government in Australia.
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pp. 83–92
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It was a research work done at Macquarie University , Australia, in 2014 as an MPP student .
S M Mehedi Hasan
BCS ( Administration), 27th batch
Senior Assistant Secretary,
Ministry of Public Administration,
Bangladesh.
Presently works as ....
Upazila Nirbahi Officer
(Subdistrict Executive Officer),
Kishoreganj,Nilphamari, Bangladesh.
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