UK Constitutional Law Association

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Paul Kildea: Australia’s abandoned local government referendum

photo-paul-kildeaIt is almost forgotten now, but Australians were recently set to vote in a referendum on the constitutional recognition of local government. Had it gone ahead, the referendum would have been the first since the republic poll in 1999, and potentially would have seen the first amendment to the Constitution in 36 years.

But the planned referendum was effectively cancelled when Prime Minister Kevin Rudd announced in August that the federal election would be held on 7 September, a week earlier than anticipated. A combination of constitutional and electoral rules prevented the local government poll from running sooner than 14 September, and so it had to be abandoned. This was a huge disappointment to local government, compounded by the fact that the referendum is unlikely to run under the new conservative Liberal-National government led by Prime Minister Tony Abbott.

Given no votes were cast, analysis of the abandoned referendum naturally turns to questions of process. Now that the push for local government recognition has ended in a whimper, is there anything that we can learn from its failure? This question matters more than it usually might, as the Abbott government has indicated that it will run a referendum of its own in the coming years – on the constitutional recognition of Aboriginal and Torres Strait Islander peoples. Advocates of that reform will be hoping that the government can learn from the mistakes of the past three years. In particular, they will hoping for something different when it comes to public engagement in the process, and campaign funding.

Before turning to these process issues, it is worth sketching some background to the local government reform that didn’t quite make it to the people. The proposal was to amend section 96 of the Australian Constitution to allow the federal (ie, national) government to give funding directly to local government bodies, rather than having to go through the States. Canberra has been making direct payments to local councils for decades, but the constitutional validity of this practice was cast into doubt by recent High Court decisions in the Pape and Williams cases.

Advocates of the reform proposal argued that existing and future spending programs on essential services like road maintenance would be vulnerable to challenge unless the Constitution was altered. Local government also saw the referendum as a way to enhance its status in the eyes of the community. Opponents argued that the reform was unnecessary, given the ability of the federal government to fund councils indirectly through the States. And they viewed it as a means of enhancing central power at the expense of the States.

It is perhaps not surprising that debate about these issues never quite captured the public imagination. What was on the table was a technical amendment and, notwithstanding attempts by local government to link it to everyday concerns like road safety and local parks, encouraging citizens to take an interest was always going to be a challenge.

The cause was not helped by the fact that little groundwork had been done to educate and involve the public in the process. In 2011 the government appointed an expert panel to conduct community consultations, but gave it insufficient time and resources to do the job properly. In total the Panel held six consultations, attracting just 127 participants, most of whom were local council representatives. The chair of the expert panel, James Spigelman, later noted that the consultations ‘did not attract much in the way of public response’. It is fair to say that most Australians would have heard about local government recognition for the first time in May 2013, when the government announced its intention to hold the referendum.

It is interesting to speculate whether or not the Australian people would have approved the proposed constitutional amendment, irrespective of the absence of public engagement. An Australian Financial Review/Nielsen poll taken in May found that 65 per cent of voters supported it, but a Morgan poll in June registered support at just 47 per cent. The historical record suggests little cause for optimism: since 1901, Australians have voted ‘Yes’ in just 8 of 44 referendums.

The Gillard government no doubt had this historical record in mind when it made what was the most controversial announcement of the referendum campaign. On 17 June 2013, Local Government Minister Anthony Albanese announced that the government was going to make available $10.5 million to assist both supporters and opponents of local government recognition in promoting their arguments to the community. Albanese explained, however, that this funding was to be allocated on an unequal basis, with $10 million going to the Australian Local Government Association (to prosecute the Yes case) and just $500,000 to opponents of constitutional change.

Equal campaign funding is widely considered to be an element of good referendum practice. The Venice Commission, for instance, endorses ‘a neutral attitude by administrative authorities’ towards campaign funding in its Code of Good Practice on Referendums. But, as a result of legislative amendments made by the Parliament earlier this year, the government was free to distribute its funding as it wished.

Albanese justified the disparity on the basis that it was in line with the level of support that the proposed constitutional amendment had received in Parliament. Indeed, the proposal had attracted broad cross-party support, garnering roughly 95 per cent of votes in Parliament. An unspoken motivation might have been to ‘load up’ the Yes case in advance of the possible launch of well-financed No campaigns run by State governments.

Whatever the rationale, the decision to allocate promotional funding unequally backfired. Tony Abbott (then the Opposition Leader) accused the government of trying to ‘buy’ the referendum result, saying that ‘argument, not money, should determine the outcome’. Conservative MPs, already divided on the merits of local government recognition, were upset by the funding announcement and it was soon reported that it had placed bipartisan support in jeopardy. This was not an insignificant development, as no referendum in Australia’s history has succeeded without bipartisan support. Had the referendum proceeded, this cooling of support may have proved decisive.

The Gillard government’s approaches to public engagement and funding are each understandable in the context of a government trying to push through a rather technical reform that was never going to attract much in the way of public interest. But the constitutional recognition of Aboriginal and Torres Strait Islander peoples requires a different approach.

Unlike local government recognition, Indigenous constitutional recognition is not, at heart, a technical issue. It raises emotional questions around racial discrimination, reconciliation and cultural identity. Broad public engagement, and intensive consultations with Indigenous peoples in particular, are essential to the legitimacy of the process.

Fortunately, the Gillard government oversaw a nationwide consultation process on the issue in 2012 that attracted large numbers of participants and submissions. It also funded a campaign group, Recognise, which has helped to maintain momentum on the issue through initiatives like its Journey to Recognition. This has provided a solid foundation for public involvement that the local government referendum never had.

The challenge for the Abbott government will be to build on this. A joint parliamentary committee has been tasked with further consultation, but it is unclear what form this will take. As time passes, the case for another round of broad-based consultations becomes stronger. And mass engagement remains elusive, pointing to the need to actively raise awareness and understanding.

On campaign funding, the local government example demonstrates that the credibility of the process can be damaged where funds are allocated in a highly disproportionate way. This lesson is particularly important with respect to Indigenous constitutional recognition, given the complexity of the proposed reforms and the strength of feeling about the issues. Another ad hoc funding arrangement that favours the government’s position could impair trust in the process.

Having said that, equal funding may not be the most desirable approach on this issue. Should a broad community consensus develop around a particular suite of reforms, the government may not wish to spend millions of dollars supporting a No case that has little public support. But if the government would like some flexibility in how it spends promotional funds, it should obtain Parliament’s agreement to this well in advance of any future referendum. This will prevent a funding controversy flaring up mid-campaign like it did in 2013.

The push for constitutional recognition of local government has stalled, but Indigenous recognition need not share the same fate. Most of the attention in the coming years will naturally be on the substance of reform proposals. But, with the abandonment of the local government referendum in mind, Australia’s political leaders must also take time to build a fair and credible process that is underscored by popular ownership.

Dr Paul Kildea is a Lecturer in the Faculty of Law at the University of New South Wales, and Referendums Project Director at the Gilbert + Tobin Centre of Public Law

Suggested citation: P. Kildea, ‘Australia’s abandoned local government referendum’  UK Const. L. Blog (29th November 2012) (available at http://ukconstitutionallaw.org).

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This entry was posted on November 14, 2013 by in Australia, Comparative law and tagged , , , .
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