Dean Smith (WA, Liberal Party) Share this | Hansard source

Thank you very much, Senator Joyce. Given my longstanding interest and commitment to maintaining the integrity of Australia's federated structure, I can think of no better way to mark that occasion than to outline some of the dangers to that structure that are contained in this constitutional bill. I want to acknowledge the heartfelt and genuine support of Senator Joyce and others for this important issue. However, I will be voting against this bill.

For a long time I have opposed the constitutional recognition of local government on the basis that it would distort the federal structure, give rise to unforeseen and unintended consequences and lead to an eventual eclipse of the states and their eventual irrelevance as a balance against the centralised power of the Commonwealth. I will come to the detail of those arguments shortly.

First, however, we need to ask ourselves: why are we preparing to hold a referendum in just 87 days' time on an issue which, frankly, does not loom large in the day-to-day thinking of many Australians? After all, there is no massive groundswell of community opinion demanding constitutional recognition of local government. There is no pressing crisis in our system of government or in our federation that demands this reform. Despite the rhetoric from some of this proposal's more fervent supporters, there is no threat to the services currently being provided by local government across Australia. So why this referendum and why now?

I believe a clue as to why this push is coming now lies in an examination of the supporters of this proposal. It is very difficult to identify public supporters of this proposal who are not either members of parliament, mayors, councillors, employees of local governments or the various local government associations that represent local councils. In other words, the chorus of enthusiasts for this proposal starts and ends with political elites, most particularly those who have a vested interest in further centralisation of power in Canberra and local councillors who labour under the misguided belief that this change will mean more funding and greater influence for their councils. In fact, I believe these changes have the potential to neuter councils, but I will come to that shortly.

Let us start at the beginning. Let us remember that this referendum was born in the midst of a deal the Prime Minister did with the Greens and Independent MPs in an effort to cling to office after the 2010 election. The policy imperatives have never really been argued by this government. This is a referendum that is being driven by political necessity, not a desire for substantial constitutional reform. Indeed, supporters of this referendum proposal seem to be deeply confused about why we need constitutional recognition of local government at all.

The Australian Local Government Association, the peak body to which the Gillard government will funnel $10 million in taxpayers' money in order to campaign for a yes vote, says that constitutional recognition of local government is needed because the Williams and the Pape decisions in the High Court have posed a direct threat to council funding from the Commonwealth. ALGA says that the only way around this is to formally recognise local government in the Constitution. So I was rather surprised when, in the course of questioning during senate estimates, Senator Lundy said that the Williams decision was 'not one of our justifications at all'. Senator Lundy's view is indeed borne out by the wording of the government's bill and the accompanying explanatory memorandum, neither of which mentions the High Court or the Williams or Pape decisions. So we have a situation where the two strongest proponents of constitutional change—the Labor government and ALGA—fundamentally disagree about why this change is needed at all. If they cannot agree, why should the Australian people be expected to take a risk and change a Constitution which has served our nation so well since 1901?

Those supporting this change have sought to disguise what they are doing by claiming the change is minor or that it is 'just a few words'. When it comes to wording in the Constitution, many of us know that one word can and will make a difference. Indeed, there is an avalanche of opinion from respected constitutional experts and those with long experience in constitutional interpretation which says that what is being proposed is anything but minor. I trust the views of the former High Court Justice Ian Callinan, who has said:

The proposal will, if adopted, enable the Commonwealth government to side line the states and divide and rule a multiplicity of clamouring councils swollen in ego and, inevitably in bureaucracy. Anyone who would believe that local autonomy and democracy will be enhanced would be delusional. Instead, the flow of funds and accordingly the preference for project over project, and their implementation will be micro-managed by Canberra. The marginalised states will be denied the capacity to design and implement the infrastructure that the states require, and, in addition to the demarcation disputes in the High Court between the states and the Commonwealth, there will be endless litigation between the states, the Commonwealth and the new empowered local authorities as to who is entitled to do what and equally importantly, where.

Those are not my words but the words of a respected High Court judge. I trust the respected constitutional scholar, Professor Anne Twomey of the University of Sydney. She wrote:

A constitutional amendment that permitted the Commonwealth to make grants to local government, ‘on such terms and conditions as the [Commonwealth] Parliament thinks fit’, would provide a further means for the Commonwealth to interfere with and potentially override State policies. It would therefore undermine the federal system of government.

Along with many Australians and many in this chamber, I trust the opinion of former Prime Minister John Howard, who was elegant in his simplicity when he provided his view to the Spigelman expert panel on local government recognition. He said:

Whilst I respect very much the role of local government in our community I am not disposed to support a constitutional change.

The historical evolution of our Constitution has been one of colonies agreeing to form a commonwealth. To use the clumsy jargon, local government units are 'creatures' of the states.

In my opinion even a casual reference to local government in the Constitution would end up having legal implications far beyond what might be advocated by the proponents of such a change.

I also trust the views of the other Liberal and National Party senators who will be standing up for their states and their local communities by opposing this grab for power.

One need not think that it is only conservatives who are opposed to the constitutional change this referendum would propose. Gary Johns, a former Keating government minister, advocates a no vote. Professor Cheryl Saunders, laureate professor at the University of Melbourne law school—someone generally considered to be on the left of the political debate—has said, simply:

This is not a good idea. It is correct, as several premiers have argued, that it undermines the authority of the states in areas of state responsibility.

I also trust the views of the state governments of New South Wales, Victoria and Western Australia, all of which oppose this referendum. I hold great hope that they will soon be joined by the Queensland government.

Nor do all local councils speak with one voice on this matter. In my own state of Western Australia, I am aware of several councils which are ardently opposed to constitutional recognition of local government, among them those of the City of Nedlands, the town of Cambridge in Perth, the Shire of Plantagenet in WA's Great Southern Region and the Shire of Dalwallinu, to name but a few. In my view, opposition to constitutional recognition of local government will only grow stronger in the next 87 days—because its supporters cannot give the people of Australia a single good reason to support it.

When you look behind the vapid sloganeering and ALGA's platitudinous claim that to vote no is to vote against local communities—a claim which makes no sense whatsoever—you are not left with very much at all. How do I know this? When the WA Local Government Association and the City of Perth wrote to me and asked me to support this bill, I replied with a series of questions. I asked those questions in good faith—because, if we are to have a fully informed debate, I believe it is important to fully consider all the issues. I asked the City of Perth for information: a list of the moneys currently received directly from the federal government by the City of Perth; a list of the current and future projects which depend on constitutional recognition of local government in order to proceed; a list of previously planned projects which have not proceeded due to local government not being currently recognised in the Constitution; a copy of the legal advice referred to in their letter which claims that this reform proposal will not reduce the power of states over local communities; a copy of any economic modelling they had or had seen demonstrating the economic benefit of constitutional recognition of local government; a copy of the minutes of the meeting at which the City of Perth's position on the proposed referendum was agreed to and advice as to whether or not that decision was unanimous; advice as to whether or not the City of Perth supports the creation of independent, publicly funded yes and no committees for the purpose of preparing cases to be put before electors; and information about what quantum of ratepayers' funds, if any, they had already committed or expected to commit to the campaign to recognise local government in the Constitution.

I grant you that that was quite a list. But the essence of those questions is the need for supporters of this referendum to justify the need for the proposed change. In our system, the burden of proof should always rest with the prosecution. If we make this change, what will the benefit for the community be? If we do not, what projects will be prevented from going forward? I sent the letter to the City of Perth and to the Western Australian Local Government Association on 3 June. Last week I received a reply from the Lord Mayor of Perth, and I thank her for that. WALGA has, as of this moment, not had the courtesy to reply to my letter. The City of Perth's answers were far from comprehensive; however, I was pleased to note that they do not plan to contribute any ratepayers' funds to the forthcoming campaign.

When we come to identifying projects or services that were under threat because local government is not recognised in the Constitution, the City of Perth evaded the issue. Likewise, they were unable to clearly identify new projects, services or initiatives that were dependent on local government recognition to proceed. I am confident that any replies I receive from other councils in Western Australia will also struggle to identify any such projects. The reason for that is that, despite the spin, this proposed change to our Constitution is not about services and it is not about lower rates for ratepayers or better run councils or better local services—it is about the federal government expanding its influence, having more control over local councils and sidelining the states, all at the expense of local decision-making in local communities across our country.

Worse still, so many mayors and local councils around Australia are supporting this because they naively believe that somehow it will result in more money for their councils and give them greater status. In fact, it will reduce their power in the face of the federal government and very possibly reduce their funding too, especially if state governments, knowing that the federal government has a constitutional power to fund councils, decide to reduce their own funding.

Even the wording of the proposed alteration is suspect. The proposed change does not refer to local councils; it refers to funding being provided to local government bodies. If passed, this referendum will create a veritable lawyers picnic as everyone rushes off to court to get a judicial interpretation of what constitutes a local government body. What happens when there is a ruling that schools, hospitals and other community services run at local levels constitute local government bodies? It would give the federal government licence to run many, many things.

This is surely the most rushed, ill thought through constitutional reform proposition ever put to the Australian people. This bill has never been reviewed independently by the parliament. This government is rushing the bill through this place because it knows that if we had time to stop and understand the consequences the Australian people would run a mile from this proposal, just as they will run a mile from this government. Further proof of that point, if it were needed, came this week when Minister Albanese and the Attorney-General announced the Gillard government's nefarious plan to buy the referendum result through blatant misuse of taxpayers' money. ALGA will be given $10 million to wage its campaign for a yes vote. Those who advocate a no vote will have to make do with just $500,000. This is one of the Gillard government's most scandalous decisions—and, when you consider the performance of this government, that is a very big statement.

The government stacking the deck by, in effect, funding only one side of the debate is a total breach of the basic principle of fairness that has always underpinned our democracy. Whatever their views on the constitutional recognition of local government, all Australians would share the view that the upcoming referendum campaign should be conducted in a fair manner. This lopsided funding of the yes case—using the money of taxpayers who will vote no—is an absolute outrage and a disgrace to our most cherished democratic principle, that of fairness.

When we last had a referendum in Australia, in 1999 on the republic issue, then Prime Minister John Howard ensured that equal public funding was made available to both the yes and no campaigns. This was despite his own clear personal preference for the no campaign. In marked contrast to John Howard's approach, Julia Gillard has done a grubby deal with the Australian Local Government Association in agreeing to funnel taxpayers' money into what will be a blatantly political campaign. Former Prime Minister John Howard set the standard for fairness in these circumstances—and Julia Gillard has not been able to meet it. The government's decision to weight funding for a referendum campaign in this fashion is entirely without precedent. The government's justification of using the House of Representatives vote on this bill to arrive at its funding formula is laughable. If we want proof that this change is intended to undermine the states, witness the way the government is clearly ignoring the views of the Senate—the states house—in this debate.

The Leader of the Opposition has written to the Prime Minister and called on her to reverse this decision. As he correctly notes in his letter, funding one side of the debate over the other by a factor of 20 to one looks like the government is trying to buy the result it wants. Indeed, I believe that is exactly what the government is doing. The Leader of the Opposition's letter to the Prime Minister says:

… it is not up to the Government of the day to pre-determine the outcome of any referendum question: a referendum is a decision for the Australian people to make.'

He is quite correct. Any referendum must be conducted in a spirit of absolute fairness and with both sides being given the opportunity to put their views; not with a desperate Labor government trying to stack the deck in its own favour. This lopsided funding scheme is nothing more than the government trying to drown out the critics of this reform.

Truly great thinkers have a way of remaining relevant beyond their time. In closing my contribution, I reflect on the words of John Stuart Mill, from his 'On Liberty' essay of 1869:

If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.

Labor senators and those on the cross bench would do well to reflect on the wisdom of those words and urge the Prime Minister to adhere to the very basic principles of democratic fairness and decency in our nation and ensure that equal funding is provided to both the yes and no referendum campaigns.

As Senator Brandis commented earlier, it is a glory of the Liberal Party that all voices are able to be heard on issues that are contentious in our party. It remains the most notable differentiator between our own party and the Australian Labor Party. In my first speech, a year ago today, I prayed for conviction in the words I speak and courage in every action. With all my heart and with all the political principles I hold dear, I reject this bill and the dubious motives that drive it.

Debate interrupted.