Senate debates

Monday, 24 June 2013


Constitution Alteration (Local Government) 2013; Second Reading

10:02 am

Photo of Christopher BackChristopher 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.

10:13 am

Photo of David FawcettDavid Fawcett (SA, Liberal Party) Share this | | Hansard source

I start by highlighting the importance of local government and talking about the framing of this debate on the constitutional recognition of local government and how it has been represented in many quarters. I would then like to talk about the premise of the question at hand, and how it is about the uncertainty which is driven by risk, and I will look in a little more detail at how we assess and treat risk—the probability of the occurrence and the consequence if that risk does eventuate. I will look at the process and ask if the premise is valid, does that justify a lack of due diligence with respect to value for money for the taxpayer and the ratepayer as well as equity for the Australian people.

Lastly, I will look at principle: does the argument have sufficient validity that it should lead us to override due diligence around the important process of reforming Australia's Constitution, the Constitution that has been the bedrock of the stability of the governance in this nation since Federation? I would argue that, although not a perfect document, it has been the bedrock of a democracy which is the envy of many nations around the world. My predecessor in my former life as the member for Wakefield, Mr Neil Andrew, made the comment that our democracy is not perfect and that, while sometimes it appears as though we have two steps forward and one step backward, generally speaking we shuffle in the right direction, compared to some nations which act with great haste and end up falling off, quite often, a fiscal or social cliff.

Firstly, I would like to address this point of how the argument has been framed, almost as though it is a case of those who support the referendum being for local government and those who do not support the referendum being against local government. That premise is clearly false. That framing is inaccurate. Any member of parliament or any senator who is in touch with the local community is undoubtedly for local government. I would like to use this address to place on record my appreciation for the advocacy of the Local Government Association of South Australia and South Australian councils, not only in this issue but in many issues, about their impact on the communities that we represent in this place. I constantly receive letters and phone calls from and have meetings with councils, council members and the Local Government Association over issues that impact on communities in South Australia, looking at ways to work together across all three levels of government where possible, or, if needs be, just between the federal government and local government, in the interests of the community. As has been well canvassed in this debate, local government now do not just do roads, drains and rubbish, but they have a broad remit where they add value to our community.

Certainly, as a member of the joint select committee looking into this constitutional recognition of local government, I have had the opportunity to interact with local government from across the whole of Australia as opposed to just South Australia. I can say with confidence that what I know to be the fact in South Australia appears to be well replicated throughout the nation. In particular, I would like to mention Felicity-ann Lewis, the Mayor of Marion, and her leadership role in the Australian Local Government Association and thank her for her very effective leadership and advocacy on this and a number of other issues.

I would like also to mention, when it comes to a strategic view of local government, the efforts of the Wakefield Group. When I was the member for Wakefield, the council areas within that electorate—Salisbury, Playford,the Town of Gawler, the Light Regional Council, the District Council of Mallala, the Clare and Gilbert Valleys Council and theWakefield Regional Council—decided to meet together on a regional basis so that, rather than putting in individual submissions for a small part of South Australia that they represented, we could take the time to work collaboratively as a group of local government bodies and as the federal government to look at regional priorities, to come up with transport plans, employment plans and other things that worked for the whole region and then to put in submissions for grants which represented a regional strategic investment as opposed to one local government body.

This had a couple of benefits. It meant that the Commonwealth government, when assessing that grant, recognised that this was indeed a strategic investment as opposed to just a local priority. It also meant that, because at the planning stage there was that collaboration and cooperation between councils, when that federal funding arrived the councils could add value to that in how they implemented the funding and work. They could sequence roadworks. They could add their own funding to it so that the taxpayer and ratepayer actually got far more value for the dollars spent. Currently, there are things like the Suburban Jobs Program in Playford, where some $11.3 million has been received. People still talk about and still benefit from one of the Howard government programs, of waterproofing northern Adelaide, where the councils of Salisbury—taking the lead in terms of the actual technology—and Playford and Tea Tree Gully came on board to significantly develop and enhance world-leading stormwater capture and re-use, using the aquifer system in South Australia.

Local government is important. It takes leadership in a number of areas, covering housing, employment and community facilities. I recognise that the Local Government Association of South Australia even did a report looking at the viability of regional airports, an issue which is important and often overlooked, given the importance of those facilities. So there is no doubt that local government is important and that federal funding for local government programs is likewise important. During the joint select committee inquiry, the Wagga council talked about the $15 million upgrade they had made to their airport and the $2.4 million that the federal government put into it. For the Roads to Recovery program—and I have seen clearly, during my time in Wakefield and before, the importance of that program—the total funding between 2009 and 2014 is $1.75 billion, a considerable amount of money.

These are all good outcomes for local government, and I highlight that they are particularly good for local government areas with smaller populations that have large land masses: they have a small rate base but very large infrastructure responsibilities, and so federal funding is quite important for them. So it is understandable, coming to the premise of the argument, that these councils are concerned that the combined effect of the decisions in the Pape and Williams cases has cast doubt on the validity of many programs funded by the Commonwealth government, included those that directly fund local government.

People are aware that the parliament responded to the decision in the Williams case by passing the Financial Framework Legislation Amendment Act (No. 3) 2012, which has provided what many would call a stopgap measure to make sure that funding can continue. But the concern that people have is: what if that were challenged; would this funding be at risk? The questions that have to be asked are: how likely is that challenge, is it necessarily the case that a challenge would also involve the government's ability to directly fund councils, is there another way to provide that funding and, lastly, how much is that funding in the first place?

Drawing on the extensive evidence that Dr Anne Twomey, a professor of constitutional law at the University of Sydney, provided to the joint select committee, it is obvious that in aggregate—and I recognise that this depends on which council you are talking about—local government in Australia is relatively financially autonomous. Commonwealth funding makes up about eight per cent of local government operating revenue, in contrast to the states, which receive about 50 per cent of their revenue from the Commonwealth. As Dr Twomey stated in her submission:

PriceWaterhouseCoopers noted in a 2006 study that dependence of individual councils on grants varies from less than 2% to more than 70% of revenue.

That is why to some councils, particularly the small regional councils that have a large land mass with a small rate base, those grants are very important. Dr Twomey also noted:

The Productivity Commission … found in 2008 that 10 percent of councils were highly dependent on grants, with grants amounting to more than 58% of their total revenue, but that these councils represented about 0.4% of the total resident population of all councils.

To get things in perspective, what we are dealing with here is approximately 1.8 per cent of local government revenue. It is still a significant amount of money for some councils, and it is very important to those councils who need it for the construction or repair of infrastructure. But, as a balance of the total revenue, it is sometimes misrepresented in the debate, which tends to lend to the urgency and the catastrophic assumption about what would happen if there were another challenge to this funding.

By contrast, in 2011-12, the Commonwealth provided $2,722,866,000 to local government through grants to the states under section 96 of the Constitution. This amount was divided up between the states according to the population of each state. It was then distributed within each state on an equalisation basis, as determined by the relevant state local government grants commission, subject to the first 30 per cent being distributed to each local government area by reference to population. In the same period, $624 million—only about 23 per cent of Commonwealth funding to local government—was paid directly through programs such as Roads to Recovery. These grants, while coming directly from the Commonwealth, still relied on assessments made by the relevant state local government grants commissions.

Whilst, in the view of constitutional experts, this funding is vulnerable to a challenge, would that be a catastrophic problem? The answer is clearly no—because that money could still be validly given under section 96 grants, as has been happening since 1923. There is a perception out there that this direct funding is new money—that, if it were not given directly, it would not be available. But the Parliamentary Research Service has found that, while financial assistance grants for local government have gone down as a proportion of GDP since 1996, direct grants have gone up. The result is that Commonwealth funding of local government, as a proportion of GDP, is about the same as in the late 1990s.

The other aspect of certainty to note is that the Commonwealth makes grants to local government in accordance with its capacity. In the current economic conditions, for example, if the government feels it does not have the capacity to make grants, it will change the amount. It will open or close programs. So local government funding, regardless of whether it is direct or through section 96, is only as certain as the will and capacity of the federal government to make those payments. That uncertainty is probably greater than any uncertainty arising out of a potential constitutional challenge.

That raises some questions. Given that there are alternative methods of payment and given that the state governments still have a say—and, despite rumours to the contrary, it has been proven, including through audits, that state governments do not reduce the amounts going to local government by skimming an administrative cost off the top—can we justify such an assault, as is now becoming apparent, on equity? And can we afford to set a precedent in the process of constitutional reform given that we cannot even guarantee that it is going to deliver the intended outcome of increased certainty?

I move now to the issue of process. When the government spends taxpayers' money to establish an expert panel to look deeply into an issue, to engage with stakeholders and to provide advice, there is a reasonable expectation that their advice will be heeded and followed in what the government subsequently does. The expert panel made it quite clear that, for a referendum for the recognition of local government to succeed, a number of preconditions would have to be met. These preconditions have not been met, either with respect to the uniform concurrence of states—some states, at least, will just play dead on the issue—or with respect to the time frame for the referendum.

The testimony from the Australian Local Government Association to the select committee was that they viewed the preconditions as being absolutely essential. In the early stages of the inquiry, at least, they expressed doubt that they could be met. In January, in fact, they expressed their strong concern that they could not be. For reasons best known to them, they have changed their position. But the fact is that the preconditions the expert panel set down have not been met, yet the government is pressing ahead.

You therefore have to ask whether the funding allocated to run the machinery of the referendum and to fund the yes and no cases is now at risk. Whether or not you support the constitutional recognition of local government, if the chances of the referendum succeeding are low—according to the evidence of the expert panel—then this money, at a time of tight financial constraint, is potentially being wasted.

Finally, to principle: Greg Craven, the Vice-Chancellor of the Australian Catholic University and a constitutional lawyer, said that the lopsided funding for the 'yes' and 'no' campaigns is unconstitutional and 'would fail the smell test' with the High Court. The decision by this government to deviate from the principles of past referendums—such as the 1999 republican debate—where funding was equal, regardless of the preferences of the Prime Minister or the government of the day for the outcome, is a dangerous precedent. It essentially means that a government can choose, in future, to use its numbers to push through legislation that will seek to buy the outcome that it wants, as opposed to giving the Australian people a fair and equitable information campaign to inform them equally about the effectiveness or veracity of both the 'yes' and the 'no' case. This is a dreadful precedent to set.

It also ignores the role of the Senate, which is directly in contravention of section 128 of the Constitution. The Senate is not only an integral part of the whole parliament but also a protector of states' rights and the provision of checks and balances. To just cut the Senate out in the decision, like this government has, is not only ignoring the Constitution but also taking away from the due diligence that is built into the Constitution as a check and balance in the interests of the people of Australia.

The 'no' case convener, Mr Julian Leeser, highlights that so far some $31.6 million of public funding has been allocated to the 'yes' case, including $10 million of ratepayers' funding through the Local Government Association, $10 million from the federal government through the 'yes' campaign and $11.6 million from the federal government to run a national civics education campaign to promote the 'yes' case. Only $500,000 is for the 'no' case. That inequity is just not right. It is unfair and, I would say, unconstitutional. It offends the Australian precedent and sense of the right thing to do.

I note also the misleading remarks from the Greens party, who quoted the ALGA as saying that the funding should be according to vote, and therefore the government has just followed the report and evidence given to it. But they have ignored the fact that the committee highlighted in that report the committee's preference for the funding to be equal for the campaign. So I am disappointed by that misleading remark, which did not take the full context.

So, because there are valid alternative funding pathways to address the funding uncertainty that was introduced by the recent High Court cases, that reduces the imperative to pursue constitutional change in the face of things such as the fact that the preconditions for success have not been met. To conclude, I just wish to recap the fact that all members and senators who are in touch with communities support local government because of the very important job that they do. The direct funding that they receive is important, and it is being used well. But it is not the majority of funding to local government. It is not certain, and it depends on the capacity and the will of the government to deliver it. It does not equate to new funding. It can be delivered, as it has been since 1923, by section 96 of the Constitution, without dilution by the state. Finally, it is only at risk if somebody challenges it and the courts decide to apply that beyond the scope. So the referendum is not guaranteed to succeed. It potentially will waste taxpayers' money. I cannot support the bill, with the government's current amendment on the funding, as it stands. I support the coalition's amendment.

10:34 am

Photo of Sue BoyceSue Boyce (Queensland, Liberal Party) Share this | | Hansard source

I think my view on the Constitution Alteration (Local Government) 2013 bill was perhaps brought into stark reality a number of years ago when the shire engineer for what was then the Dalby shire and the shire engineer for the Wambo Shire Council—two councils which have now been merged—said: 'The Howard government's Roads to Recovery program is the best thing a federal government has ever done for us. If you give the money to George Street—meaning to the state government—they spend half of it on meetings, analysis and commissions for their input. If you give the money straight to us 95 per cent of it goes on to our roads.' Roads to Recovery highlighted the efficiency and the need for some avenue of direct funding outside the grants program to local government. It is a damning indictment and a damning example of this government's ability to snatch defeat out of the jaws of victory that we now have so much opposition to this referendum at this time, as well as just a general opposition to the referendum.

I suppose the genesis of this bill and this particular referendum go back to about 2006, when both houses of parliament passed a motion recognising the place and value that local government has in Australian society. The motion said:

That the House/Senate:

(a) recognises that local government is part of the governance of Australia, serving communities through locally-elected councils;

(b) values the rich diversity of councils around Australia, reflecting the varied communities they serve;

(c) acknowledges the role of local government in governance, advocacy, the provision of infrastructure, service delivery, planning, community development and regulation;

(d) acknowledges the importance of cooperating and consulting with local government on the priorities of their local communities;

(e) acknowledges the significant Australian Government funding that is provided to local government to spend on locally determined priorities, such as roads and other local government services; and

(f) commends local government elected officials who give their time to serve their communities.

That I think was the beginning of this genesis of the referendum bill and it is certainly the third genesis that the bill has had.

The coalition continues to hold the view of supporting a minimalist approach to putting local government into the constitution, but it is only the process that this government is capable of. It now has got us to the situation where almost everyone outside the Local Government Association has deep concerns about the way this bill is proposed and the way this referendum is going. An expert panel under Mr Justice Spigelman was set up in August 2011 and it looked at four types of recognition: symbolic recognition, democratic recognition, financial recognition and recognition through federal cooperation. The government dropped symbolic recognition and recognition through federal cooperation via a preamble. It then looked at the others, did some polling, took a lot of evidence right round the country and acknowledged the general historical reluctance of Australians to change the constitution.

There have only been eight out of 44 referenda that have succeeded in Australia. We need to keep in mind that in many cases those referenda were supported by both major parties and by the majority of states—that is, the yes case was supported by a majority of states and by the major parties—and still they failed. It is incredible that this could happen. There are a number of conditions that I would have thought this government was well and truly aware needed to be undertaken before getting to the situation of putting a referendum forward.

The expert panel sought two extra conditions for the referendum's success. The first was that the Commonwealth negotiate with the states to achieve their support for the financial recognition option. The second was that the Commonwealth adopt steps suggested by the ALGA necessary to achieve informed, positive public engagement on the issue. Neither of these outcomes has been achieved by this government. A number of state governments are energetically opposed to this referendum. I think that is a short-sighted view to take; nevertheless, there is not even support for it coming from the majority of states. Whilst funding has gone to the ALGA to establish informed and positive public engagement on the issue, it is certainly not resonating out on the streets. This might be partly because of the other diabolical political stories that are dominating the media—certainly, this issue has not come out there.

When you look at the way that the government has gone about the recognition of Indigenous people in the Constitution—starting now on a referendum to occur in at least a year's time, with publicity and with major and important functions to highlight the development of the campaign for a yes vote on the recognition of Indigenous people in our Constitution—it is completely different from the way that the government has gone about this referendum. Many people were surprised when the Prime Minister said, almost as an afterthought, when she announced the longest election campaign in history: 'Oh, and by the way, we're going to have a referendum on local government as well.' It was a surprise to so many people. It was announced long before the wording for it became available. The wording for it was not even known then.

It is interesting to look at the comments made by so many groups. Queensland, I would suggest, has the strongest, most mature and best developed local government system in Australia. It certainly appears that way to me. Having lived in three states at various times, it appears to me that the local government councils in Queensland are taken more seriously and are more professionally run. I do not want to criticise the abilities or capacities of people in the councils of other states when I say that Queensland councils are 'more professionally run'. I simply think that they take on a larger task. They tend to be run more by full-time people than do some of the councils that I have seen in other states. Naturally, Queensland is strongly committed to supporting the referendum and to supporting the recognition of local government within our Constitution, but this federal Labor government has somehow managed to even muck up this.

Queensland, my home state, was the only state to come out in support of the referendum before the bill for it was introduced—in other words, before they had the wording for it. It was in early 2013 that Queensland Premier Campbell Newman wrote to all the other states, urging them to support the referendum. He wrote to the Prime Minister, supporting the changes that were being proposed—but they were only the changes that were being proposed. He also supported holding the referendum during the election or on a fixed date in 2014. It would be my contention that that might be a far better way to go about it. At the time, Premier Newman said:

It is the Queensland Government’s view that constitutional recognition that does not diminish the State’s primary constitutional responsibility for local government is appropriate given the breadth of interaction over recent decades between the Commonwealth and councils, and the legal uncertainty about funding that has arisen from the decisions of the High Court in the Pape and Williams cases in recent years.

By 5 June 2013 the Queensland government had taken some legal advice and had begun to have concerns about the insertion that would go into the Constitution. They even proposed changing the wording of the bill because of their concerns. That would seem to suggest that Prime Minister Gillard had not quite managed to fulfil the condition set by the Spigelman report that the federal government should have the support of the state governments before they went ahead. So she could not get it right, even for the strongest proponent, Queensland, with a Premier who was previously the lord mayor of the largest council in Australia. Premier Newman, in a letter sent on 5 June 2013, said:

The Queensland government has consistently supported constitutional recognition of local government on the basis that any amendment allowed the commonwealth government to directly fund local government without diminishing the role of the state government. We have taken advice in relation to the matter. In our opinion, having considered the matter further, the amendment in its current form does not achieve this result. Accordingly, our support for the proposed amendment is subject to the inclusion of additional wording in the bill.

They propose that the wording should be:

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.

That is what the bill currently proposes. Queensland would then add:

The terms and conditions of a grant of financial assistance to a state or to a local government body formed by a law of a state are subject to the laws of the state.

It is quite clear that the Queensland government is trying to ensure that the problems that are raised by some of the doomsayers, some of the critics, some of the opponents of this referendum, are put forward, which include that this will just be a backdoor way for the federal government to ignore state governments and pour money into local councils, to use this for pork barrelling to buy the support of local councils. That is what the amendment proposed by Queensland would overcome.

The bill has been through the House of Representatives and is now before us, and we have a situation where once again this government gets lost in the detail; it cannot do the process properly. It is interesting that Queensland local government minister David Crisafulli, himself a former deputy mayor on the Townsville council, said:

We don't want to be spoilers but we can't accept the language that's been put forward. We want to find a way to make this a yes vote but that can only be done if the commonwealth spells out that it only wants to fund local government, not control it. This process should be about strengthening the role of local councils, not binding them to the whims of the federal government by stealth.

That suggests a less than wholehearted support for this referendum from the state supporting it most strongly, Queensland. South Australia and Western Australia have supported it, New South Wales said, 'We're not sure' and Victoria said it was opposed to the terms of the referendum. So in the current situation we do not have anything like agreement from the states on undertaking this referendum.

On the topic of the referendum being publicly supported, with an educated public looking at this question, I did something of a straw poll while talking to constituents at the weekend at a number of campaign functions that were being conduct. The vast majority of people on the street said to me, 'What referendum?' That was their answer: 'What referendum?' They did not know it was happening—and, as we have proved a thousand times over, irrespective of the support of the parties, state governments and the like, if people do not understand the issue, they will not support it at a referendum. Australians have proved that so many times.

In terms of support for this move, I would like to commend the Local Government Association of Queensland, under Councillor Paul Bell, who was the state president, and has been the national president and one of the drivers of this. Councillor Bell is a member of the Emerald Shire Council. As President of the Local Government Association of Queensland, and of Australia, he has done an excellent job in pushing this matter forward. But I would suggest that some of the other state local government organisations may not have worked as hard as they could have on this move. It seems to me that there is, in some states, even a lack of understanding of how to go about advocacy. I was surprised that there was the sense that somehow the duty of the major parties, or the government, to convince people to vote for this. In fact, the local councillors are the people who are closest to the constituents—they are the people who could have driven this, so that everyone in Australia knew what we were talking about and knew the issues, had they put energy into it at a grass-roots level. That did not happen.

I must also admit, talking about how the public become aware of this, that I was gobsmacked and amazed by the funding proposals that the Labor government put through, as was our leader Mr Tony Abbott. He was so shocked by this that he wrote to the Prime Minister saying that the fact that this government chose to give $10 million to the 'yes' case and half a million dollars to the 'no' case just beggars belief. It is undemocratic; it is unfair. Even though I support the 'yes' case strongly, I also believe that it is beyond embarrassing, beyond any knowledge of corporate governance or any other vestige of honesty, that a government would propose that the funding be based on the number of votes. At the last referendum the money was fifty-fifty—and that is the only way that the Australian public are going to buy a referendum. They only have to hear that the 'no' case got a twentieth of what the 'yes' case got and you have already lost the referendum, irrespective of the topic—because fairness is the first thing that an Australian voter will be looking for. I very much share the view of Mr Tony Abbott when he said it is very disappointing that public funding has been allocated so disproportionately. It is the first time that any notion of funding based on parliamentary votes has ever been raised with the coalition or the public. So, once again, we have poor process leading to defeat and mess. (Time expired)

10:54 am

Photo of Bridget McKenzieBridget McKenzie (Victoria, National Party) Share this | | Hansard source

I rise today to speak on the Constitution Alteration (Local Government) Bill 2013—the referendum to recognise local government. I oppose this referendum for the same reasons the Australian people twice voted against the question it seeks to put to the public. We are a sceptical people. We are sceptical of power concentration. And this bill is nothing short of a power grab by Canberra. It is a blatant attempt to take power from the states, it is a crude answer to a difficult problem—it is a vote-buying exercise.

From the outset, though, it is important to note that I do not dispute the fact that there are significant challenges confronting local government, particularly regarding funding and the integral role that local government plays in our nation's governments. As the Joint Select Committee on Constitutional Recognition of Local Government's final report on the expert panel's majority finding noted, when the Constitution was drafted, there was no consideration that the federal government would need to fund local governments. Now, though, the federal government funds councils directly in many areas, as it does in the areas of health, education and other aspects of our national conversation that are explicitly the area of states constitutionally.

There have been High Court challenges which have seen that funding come under some question mark, and local government has been concerned that this funding is not secure going forward. Constitutional experts told the committee that there were serious doubts about the direct funding of local government surviving a constitutional challenge, but we have heard numerous constitutional experts throughout this debate, both in the Senate and within our own states, with counteradvice. This uncertainty is plaguing the decision making of local councils across Australia, and it is hampering their ability to effectively plan for positive sustainable futures for their local constituents.

Councils are at the coalface of our democracy. They have an intimate knowledge of their communities and are dedicated to serving their ratepayers. I know firsthand that there is a strong desire of local councillors to engage with and serve their communities, as I met with the majority of local councils in regional Victoria on coming to this place. Every single one I asked, 'Do you support constitutional recognition of local government?' and they all answered yes, with varying degrees of strength, to that question. But I also followed that question up with: 'Why do you support that?' They said, 'Because our budgets are struggling,' and this was particularly the case in rural areas, as they have increasing needs and a shrinking ratepayer base. Many rural councils have infrastructure deficits and an insufficient rate base to keep up with the costs, and there is a lot of debate about that in Victoria at the moment.

This proposed referendum, this debate, is not about supporting councils or not supporting local councils. Indeed, it is out of concern for the needs of local government that I am opposing this bill. I do not want them to become the servant of two political masters, and I do not want them to be dictated to by Canberra. While the committee was right in identifying a funding problem, the solution before us today is far from the right one.

My opposition to this bill is based on first principles, when we strip away the layers of secondary arguments and get back to the basics. Conservative philosophy does not advocate weak government but prefers government which is both strong enough to cope with internal and external order and still constitutionally restricted and balanced, a government that is able to function properly to represent and serve its constituents but that does not wield excessive power or control. Our federal government is not in any danger of having not enough power to cope with internal or external order, and therefore the power it does not need must remain with the people or, as in this case, with other levels of government.

Eighteenth century Irish statesman and political theorist Edmund Burke was concerned about the concentration of power in one place and argued that power should be distributed throughout society. To do its job properly, Burke said, the government needed to be strong, but its strength should not be concentrated in one person or—importantly for this debate—in one place. That is why Burke stressed the importance of 'little platoons', or secondary associations. He said that local concerns should be managed at the local level not the national and that, instead of placing all power in government, the authority of other groups should be respected and maintained. The current power-sharing agreement in Australia does precisely this. Power is shared between various levels of government to prevent its becoming concentrated and to prevent its abuse.

In the context of this bill, this concept is critical. We must regard the granting of further powers to the centralised government with suspicion. If it is not necessary, why grant further power to the federal government? Considering the surrender of further powers to the federal government with scepticism explains why referenda in this country have a historically low success rate. We do not accept that government is always right as a natural assumption. In fact, of the 44 questions put to the people, 36 have been rejected. This is because Australian people have a healthy respect for our Constitution. They know it is a critical document that sets out where power should lie in this country. They are rightfully wary of changing it without very good reason. To change, the referendum question should be immensely important. It should pose a question that is significant, challenging and desired by the people.

In 1967 the Australian people voted to give the Commonwealth the power to make laws for Aboriginal and Torres Strait Islander people. That referendum was symbolic and nation defining. It rectified a significant injustice and set Australia on a path to righting historical wrongs. That is exactly what a referendum should be for. More than 45 years later we have started the process to recognise Aboriginal and Torres Strait Islander people in our constitution. I went to the launch in Melbourne, alongside government, Greens and coalition senators and members—a bipartisan response. In this case building widespread grassroots support to educate the public is part of the plan, and this will maximise the ultimate success of the referendum. The issue at stake is rightfully recognised as one of national importance and is treated accordingly. These examples are a far cry from this government's plan to recognise local government in the constitution before us today.

Not only has Australia traditionally rejected referenda, it has also twice vetoed referenda on the question of recognising local government. Similar questions were put to the people in 1974 and in 1988. In 1974, Australians were invited to support:

An Act to alter the Constitution to enable the Commonwealth to borrow money for, and to grant financial assistance to, local government bodies.

It was lost 53 per cent to 47 per cent and was rejected by five out of the six states. At the time deputy leader of the opposition, the Country Party's Doug Anthony, declared that if the people were asked to participate in a referendum, then it should be clear that the proposition sought to alter the constitution because it was both necessary and desirable to do so. In opposing the bill, he argued:

In the view of the Australian Country Party it is reasonable to suggest special arrangements to assist the financial position of local government. It is not reasonable to propose fundamental constitutional amendments as being a necessary condition to do this.

In 1988 the question was even simpler: do you want to alter the constitution to recognise local government? Yes or no.

During the debate Nationals leader Ian Sinclair said the National Party had a very real respect for local government, and it does. I think it has been evidenced throughout this debate by the shadow minister for local government, Barnaby Joyce. We understand localism, and Senator Joyce has made a passionate justification for local government's role in our democracy, and I fully support him in that. But back in 1988 Ian Sinclair also said, 'I suggest the Labor Party sees this referendum as a very good opportunity to aggregate power through some new amalgam of local governments.' It is the unintended consequences that are not clear today in the motion before us. The answer to that referendum in 1988 was even clearer: it was rejected in every state and by an overall margin of two to one. That referendum cost $34 million.

Despite the lessons of history, this government is apparently keen to try its luck at power grabbing once again. It will attempt to further control how money is spent and spread its influence into local council meetings across the country. If it is not this government, then it will be a future government. At present Commonwealth financial assistance grants to local government, which do go through state administrations, are largely untied although a certain proportion of the funding has to be spent on roads. Each state is able to focus on variables in their own funding formula that are specific to their needs. In Victoria we have concerns that any change to that will result in less money going to Victorian councils.

If local governments were to be recognised in the constitution, Canberra would be able to fund local governments 'on such terms and conditions as the Parliament thinks fit'—that is section 96 of the Constitution. If we think of what various governments, including this one, have seen fit to do, we should all be quite concerned about giving that power to a federal government.

Poorer regional councils with a lower rate base and higher infrastructure costs could be disadvantaged, as they would no longer be in a position to refuse funding with a condition they did not like. Desperate for funding, these councils would be vulnerable to the political will of both the state and federal governments. We should be wary of the concentration of power in one place. Canberra should not be deciding how local councils spend their money. That should be left to the people who know the area best and who act in the best interests of its constituents—the local government and local councillors.

Not only does the federal government seek to unnecessarily increase its power and influence with this bill; it also seeks to unfairly influence public debate on the bill in an effort to ensure the referendum is successful. Just last week came the announcement that the government will fund the yes campaign to the tune of $10 million of taxpayers' money and only commit $500,000 to the no case. This is in addition to ratepayers' contribution of an additional $10 million. So taxpayers at the local and the federal level are committing over $20 million of their own money to fund a campaign that largely, as Senator Boyce suggested, they do not even have an opinion on. It is un-Australian. It is also unprecedented.

Since legislation was changed in 1999 to allow for funding the arguments for and against referenda questions, there has been just one referendum. In the 1999 referendum, on the question of Australia becoming a republic, both the yes and the no cases were funded equally, as they should have been. A central tenet of democracy is the concept of free and informed debate on issues of importance. If the public is not aware of the pros and cons of a given issue, they cannot make fully informed decisions. When there is such a differential in the weight of advertisement, if you like, that is going to be even more the case. As Thomas Jefferson said:

If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.

The people cannot be safe without information. Fully understanding the consequences of and reasons for and against a change to the Constitution is certainly an issue of great importance. I welcome the coalition's amendment in that regard. It seems that, for the Gillard government, some sides of an argument are more equal than others.

Voting to change the Constitution is not something that should be done lightly or without good reason. In this case, it is not something that should be done at all. This referendum is not the only possible solution to the problem of local government funding. Other options which the government could pursue include increasing funding to the grants commissions which administer funding to each state or entering into an agreement under section 96 of the Constitution to allow for the Commonwealth to fund local councils for specific purposes. Both of these options are available and preferable to what the government is proposing now.

Not only is this referendum unnecessary and self-serving; it is also unpopular, something of concern when you are considering going to the people for a vote. The states of New South Wales, Victoria and Western Australia have long been opposed to this move, and, if recent reports are correct, Queensland is also against this move with these particular words. These four states represent the majority of the Federation states that signed up to the Constitution and the majority of the population. In section 128 of our Constitution, detailing how the Constitution can be changed, it says that a majority of people in a majority of states is required for a referendum to pass. It would seem then that there should be, in this the states house, many more senators voting against this bill than for it.

Victoria, in particular, has very good reason for opposing this referendum. Victoria has been through extensive and not always popular reform of local government over the past two decades. The Victorian Minister for Local Government, Jeanette Powell, said last month that there was a strong possibility that Victorian councils would be financially disadvantaged by the change proposed by this referendum. Minister Powell has been a strong champion of local governments, but she is equally strong about saying that this is not the right way to solve the issues confronting local government, particularly around their funding.

The money that this referendum will cost could also be better spent. The $10 million to fund the yes campaign, the half a million dollars to fund the no campaign and the other $10 million being donated, if you like, from local councils, who can least afford it, could be spent on a myriad of services within local communities, as could the $55 million that the referendum is expected to cost. Regional councils like the Loddon Shire in western Victoria, which services a road network of 5½ thousand kilometres, or Mildura Rural City Council, which services about 5,000 kilometres of roads, could instead be the beneficiaries of this money, rather than ratepayers' money heading off to the Australian Local Government Association. It would make more sense than funding a referendum campaign that is ill-founded and, I think importantly, destined to fail when we compare it to how this government is approaching other issues of constitutional change that they are considering, in a bipartisan manner, taking people with them on the journey to come to a consensus so that we are all on the same page. That is exactly how constitutional change should occur.

Finally, the recognition of local government is an important question for empire building bureaucrats and councillors but it is not relevant to everyday Australians. I doubt it would even be in the top 50 let alone the top 10 issues that affect Australians out there in voter land. Rather, this bill is demonstrative of a government hungry for power and more control over local councils. It is a very blunt and unsophisticated solution to a very complex problem.

I understand the bill has the required numbers to pass in this place as easily as it did in the other. We will have a third referendum on local government on 14 September. My prediction is that it will fail. When we meet here again after the election and ask what went wrong, I will be pointing senators back to the address that I and others have made over the course of this debate.

11:11 am

Photo of John WilliamsJohn Williams (NSW, National Party) Share this | | Hansard source

I rise to speak on the Constitution Alteration (Local Government) 2013, which seeks to amend section 96 of the Australian constitution to make a specific provision which would allow the granting of financial assistance to local councils. We know that there are varying opinions in the coalition on this matter. My colleague Senator Ryan and my close colleague Senator McKenzie and I have a difference of opinion, but on our side of the chamber you are allowed to have a difference of opinion. We are a democracy and we are allowed to vote how we like, and I certainly welcome that. No doubt this will be a controversial issue when it comes to a vote. That is what fairness and democracy is about.

The real problem I have is the way in which this legislation has been rushed. I will be supporting this legislation. I support the change to the Constitution. But I am with Senator McKenzie: I do not think the referendum has any hope of passing on 14 September, when the people of Australia will have their say. To pass a referendum, first of all you need everyone in both houses of parliament, along with the state governments and local councils, onside. As the Electoral Commission says, we need at least six months.

I think this is a distraction by the government so that, on 14 September, when people go to vote, they will have their House of Representatives selection, their Senate vote and their vote on the referendum on the financial recognition of local government. Why did the government rush it? It is a distraction to try to take the minds of many voting Australians off the real issue on 14 September, which is whether the Australian people want a return of the Gillard government—or will it be the Rudd government or the Shorten government? Only time will tell, as we read in today's media about all the disruption, division and so on. I think this referendum has little or no chance of passing, of being accepted by the Australian people, on 14 September.

Philip Davis, an MLC in the Victorian parliament, says in today's Herald Sun:

The Commonwealth is giving $10.5 million in funding for the Yes campaign, but the No camp will get only $500,000.

I will be supporting the yes campaign, but I realise that the funding is very unfair. If you go back and look at the referendum on the republic, you see that the Howard government gave equal funding to both sides. The government should be giving fair funding to both sides, not $10.5 million to one side and $500,000 to the other side. Does that have a smell of bias? Of course it does. It is biased to the side I will be voting for. But it is unfair. As I often say, life is about fairness.

I want to start off by quoting the General-Manager of Glen Innes Severn Council in northern New South Wales, Hein Basson. This is what local government faces:

Rates only account for approximately 28 per cent of council's revenue. Grants from other tiers of government are by far our largest source of income. The ability of local government to meet the needs of its communities will always be dependent on its ability to receive adequate funding from the federal government, through the Financial Assistance Grants, distributed by the state governments. Without it our community cannot be served by sustainable council into the future.

That pretty much sums up what many councils in rural and regional areas think about the funding—but, of course, the FAG grants are going through the state governments.

I want to take you to the Roads to Recovery program, a very important and successful program—initiated under the Howard government, of course. The former member for New England, Stuart St Clair said in his speech:

I rise in this House today to again bring to the House's attention the importance of the Roads to Recovery program to local councils, particularly local councils in my electorate of New England. There has been quite considerable discussion of the Roads to Recovery program and the fact that it is delivering for our road networks in regional Australia a much-needed and long-overdue level of service that we have been unable to provide through local government for a long time.

It is interesting, when I see audit reports on local councils in many areas. When they add in the depreciation of their road networks, those councils are going backwards financially in a serious way. Mr St Clair went on to say:

Last week I went out with the mayor of one of my local councils, the Gowrie Shire Council, together with some of its councillors and engineers, to have a look at the work being done on many of the roads. They were pinpointed years ago as desperately needing a gravel re-sheeting program. To stand there on the side of these roads while the trucks were rolling was incredible, because you are physically seeing, for the first time, substantial works being done that will bring direct benefits to people who live in those areas.

Of course, two High Court challenges—the Williams case and the Pape case—are probably the whole reason we are talking about this legislation now. I think the federal government giving direct funding to local councils is a good idea. Look at the mess of the Building the Education Revolution, where the federal government gave the funding to the state governments to control. Go back a few years, to that disgraceful Labor government in New South Wales, who then had contractors distribute Building the Education Revolution funds. In the north and north-west of New South Wales, and on the coastal regions, they appointed a contractor called Reed Constructions. I was at the meeting when they called the meeting in Tamworth, with about 200 trades men and women, plumbers, electricians and builders. Reed Constructions said, 'Of course, there's nothing in this for us.' Well, there was nothing in it for many, because Reed Constructions went broke. One builder in Moree who carried out one of the Building the Education Revolution programs lost in excess of $600,000—I think it was $642,000—carrying out a government job, building the school buildings. It would have been good, in my opinion, if the federal government had run that program and just given it to the schools and said to the schools, 'Here's your stimulus package; you spend it how you like'—as they did with the Catholic system and some of the private schools, where they got some real benefit. But, no, it was a mess—it was rushed through, like many things this government does. You only have to look back to the Prime Minister's decision on the banning of live cattle exports to Indonesia. No-one supported what the Four Cornersprogram showed, with the abuse of the cattle, and the coalition actually supported the government to ban the export of live cattle to those abattoirs that were not doing the right thing. Of course, the emails came in and then the decision by Prime Minister Gillard to ban the whole export industry. When you talk to the beef producers of the Top End or to those further south—cattle are now being transported further south because we have lost that export market—they tell you that 750,000 head of cattle a year were exported but now it is down to about 200,000. The financial damage and ruin that this has caused to so many is simply unforgivable.

Here we have this referendum bill before us. I will be supporting it, but I know some—I am not too sure how many—on my side will not be supporting it. Responsibility for local governments is not mentioned anywhere in the Constitution. State constitutions have provisions to maintain a system of local government, but these provisions do not guarantee appropriate funding of local government. We are all aware that local government is under the total control of state governments—and certainly that is the way it should be. What I am saying is that many regional councils are concerned about High Court challenges to the Commonwealth's powers to make direct payments for programs such as Roads to Recovery, which includes bridges, which are the lifeblood of local government. This legislation will give the Commonwealth power to grant financial assistance to local government bodies formed by a law of the state. The coalition has expressed in principle support for the financial recognition of local government but, as I said, some in the coalition disagree with it and they will vote accordingly. We actually have a democracy on this side of the parliament, whereas I realise that, if those on the other side of the parliament vote against Australian Labor Party lines, unless it is a conscience vote, they get kicked out. Good night, Irene.

While there has been a query about the Commonwealth's powers to fund local government directly, in the past it has been done under the appropriation powers under sections 81 of the Constitution or its executive powers under section 61 of the Constitution. One of the most successful programs, as I said, is the Roads to Recovery program. It has been a real benefit to the roads in country areas which carry so many of our exports, such as wheat as wheat, livestock, cotton—you name it. All up, direct payments to local government amount to about $500 million a year—an enormous amount of money. As I said, this has been a lifesaver, a breath of fresh air, to local governments, who simply cannot fund the their maintenance programs throughout many of the regional areas. In fact, I would say there would not be a local government or council in regional New South Wales that would have enough money to fund the upkeep, the maintenance and the improvements of the local road projects.

Over the past few years, more than 6,000 projects have been funded through direct payments from the Commonwealth to local government. About $2 billion in stimulus spending was granted to local government to spend on local community infrastructure. This money was spent without the waste and scandal that occurred in the states with the Commonwealth's Building the Education Revolution. Of course, there are various views among the state governments on this referendum, but the overwhelming majority of councils want financial recognition. A poll conducted for the Australian Local Government Association found that 61 per cent of Australians support the recognition of local government. This was most pronounced in rural and regional areas. But the government have made a mess of the whole process. They have ignored much of what the expert panel had to say. The expert panel recommended that the Commonwealth negotiate with the states to get their support. I think that is vital, but the Labor government have made little attempt to do this. As I said earlier, this is another example of the government's inability to communicate and that they must rush things, which have been features of the Gillard government and also of the Rudd government prior to it. It is three years from today that the political disposal of Mr Rudd occurred.

Not only does this government not communicate with the Australian people; it also does not communicate with the states. As I said at the start, we know the history of referendums in Australia and so if a referendum is to pass then the support of all governments—local, state and federal—is needed. We need time to sell that message. With the attempt by the government to fund one side of the debate to the tune of $10.5 million and the other side to the tune of $500,000, then no doubt here, in Canberra, the government is trying to influence the result. But many of the states are not on board—and, as I said, if you do not have the states on board, I think the chances of getting a yes vote up on 14 September are probably one in a million.

The coalition MPs on the Joint Select Committee on the Constitutional Recognition of Local Government, whose report was handed down on 7 March, made some interesting additional comments. The report was signed off by the Nationals member for Parkes, Mr Mark Coulton, and also the member for Ryan, Mrs Jane Prentice. Mr Coulton has a strong background in local government. His father, the late Jack Coulton, who was a decent man, was Shire President of the Yallaroi Shire Council for over 15 years and a councillor for over 25 years. Mark Coulton himself was the inaugural mayor of the amalgamated Gwydir Shire Council, involving mainly the towns of Bingara and Warialda, for three years, and it was during his term that the council won the AR Bluett award for excellence in local government. The current mayor of Gwydir Shire Council, Mr John Coulton, is the brother of Mark Coulton and the son of the late Jack Coulton. So the Coultons have had a lot to do with local government for many, many years.

The coalition MPs made it clear that the Labor government has mismanaged this whole process—and that sounds familiar around here. I quote from their report:

Evidence received at the hearing suggested that the Government position was that negotiation could not occur with the States until a proposal was developed. Coalition members of the Committee reject this position and consider that the government has failed to make best use of the time since December 2011 by failing to undertake such negotiations and that this delay has potentially undermined the prospect of a full and informed referendum proposition being put in 2013.

They then went on to question whether the public will be properly informed of this whole question and whether they will receive sufficient information. Again I quote from their additional comments:

The second pre-condition which has not been met is that a viable educational campaign be conducted by the Federal government. The prospect of a referendum held in conjunction with this year's federal election raises a serious risk where the opportunity to fully inform the voting public through public education and other avenues has not been fully realised. Where a proposed change is worthy of support, a well-informed public will be more likely to support it and, if a proposed change has potential pitfalls, a well informed public will be more likely to identify those problems and vote accordingly.

Those members of the committee are correct in saying that past experience and referenda in Australia has shown that Australians tend to vote no if they do not fully understand the issues behind the question.

Let us look at the funding arrangements for the yes case and the no case. As I said, the government has given $10.5 million for one side and only $500,000 for the other side. As I said, life is about fairness, and that to me sounds very unfair. I repeat that, during the Howard government, when we had the 1999 referendum on Australia becoming a republic, both sides were allocated $7 million to present their case. It is interesting to read the comments of Greg Craven, who is the Vice-Chancellor of the Australian Catholic University and a constitutional lawyer. He is quoted as saying 'this lopsided funding for the yes and no campaigns this time round would not pass the smell test'. The coalition believe the cases should be equally funded and have written to the Prime Minister in this regard.

This whole matter is just as the coalition feared: it is another mess, it is another rushed policy, it is another rushed piece of legislation. This week we face the prospect of having debate gagged on 53 pieces of legislation, and I see this piece of legislation being no different. There are 53 bills demanding proper scrutiny, and senators who wish to speak on the various piece of legislation will be denied the chance. The government set the agenda in conjunction with their colleagues the Greens. They control what comes in for this chamber. Again, they have made a total mess of it. The government are far too busy focusing on who will be the leader, and today they are running around the corridors doing the numbers because former Prime Minister Kevin Rudd has said, 'I've had this knife in my back for three years; it is about time someone else wore it.'

There will be many on our side who support this legislation—no doubt, the legislation will pass the Senate. But I think it has been rushed, ill-prepared legislation; that the public have been ill-informed; and that it is very wrongly financed, and very biased, with respect to support for both sides. The referendum, as I said, will more than likely go down. My only concern is that, if the referendum goes down, those fundings for local government, direct from the federal government, and we have another challenge to the High Court—what will be the result of that? I want to see that funding continue. As a former Deputy Prime Minister, John Anderson, said to us at a meeting prior to the introduction of the Roads to Recovery program: if it goes through the states, how much will be taken off for administration? We need to get the best bang for our buck, if I can put it that way, when it comes to financing projects, and the Roads to Recovery program is a classic example. I hope those projects continue, but I have little confidence in this referendum being accepted by the Australian people, because it is rushed, ill-prepared—and, if people do not understand it, they will simply vote no. I will be supporting this legislation. I will be voting yes for it on 14 September, but I think I will be on the losing team.

11:31 am

Photo of Scott RyanScott Ryan (Victoria, Liberal Party, Shadow Parliamentary Secretary for Small Business and Fair Competition) Share this | | Hansard source

I rise to speak on the Constitution Alteration (Local Government) 2013, which puts forward an amendment to our Constitution to the people for their consideration, and to support the amendment put moved by the opposition. It is important to note that the debate in this chamber is not necessarily a debate regarding the merits of the proposal itself—although it may well be. This bill only puts forward a question that will be determined by the Australian people.

I will say at the outset that my comments are predominantly focused on the unprecedented funding announcement by the Labor government last Monday morning. Minister Albanese's announcement of $10 million for the 'yes' campaign, yet only $500,000 for the 'no' campaign, represents a new low in Labor's century-long war against our Constitution.

As I have stated in this chamber on numerous occasions, the coalition position is that we will not oppose the legislation that allows the referendum to be put before the Australian people. While we support the ability of the Commonwealth to make payments to local government, this referendum should not be proceeding at this time, as the conditions laid down for it by the government's own advisors have not been met. This critical issue, however, will not distract us from the task of ensuring that 14 September is a referendum on this government—this Labor-Greens-Independents alliance—and the chaos they have brought to our polity.

In that context, the history of this particular proposal is worth recounting. It has been proposed twice by the Labor Party—in 1974 and in 1988. It has been rejected twice by the people—in 1988, by the largest majority for a no vote in referendum history. This proposal is part of the price paid to the Greens, and the so-called 'Independent' members of the House of Representatives, in order for Labor to gain their support to form government. However, it also follows the work of the panel led by the Hon. Jim Spigelman. But, as has been the case with panels considering specific proposals for constitutional amendment, often only advocates of an issue are appointed—so, by its nature, it is focused on only one side of the argument. The issue was also subsequently considered by a joint committee of this parliament at the beginning of this year. Both specifically considered the similar proposals that were rejected by the people in 1974 and 1988.

When one reads that background information, the chaos of this government's approach is immediately apparent—because, while the government and the Greens attempt to hide behind these reports, there are some profound differences between what was recommended and what has occurred. First, and most importantly, the very amendment proposed in this bill, and the very words the Labor Party propose to insert in our Constitution, are not the same words as considered in both those reports. This proposed constitutional amendment is different; and while, in the chaos of this government, such a small difference may not mean much, such a difference in words can be significant. In a Constitution, the fine print matters. This reflects the rushed nature of the government's handling of this issue. This proposed change has not been subjected to detailed examination. There remain genuine questions regarding the need for the amendment, given the provisions of section 96 of the Constitution, which remain unchallenged. There are also questions about the potential impact of these new words, specifically the potential interaction of this new power with section 109 of the Constitution, especially as, following the Williams case, appropriations now need a statutory basis. Furthermore, the government's timetable does not meet that outlined in the Spigelman report or that outlined by the Australian Electoral Commission. The Spigelman report outlined that the support of the states was a necessary condition—again, something the ALP have never seriously attempted and that clearly is not the case now.

This is where I turn to the funding announcement last week. In an unprecedented announcement, the government announced $10 million of funding for the yes campaign, yet only $500,000 for the no case. Let us pause for a moment to consider that—a 20 to one advantage to one side of this debate. This is nothing less than an attempt to rig the referendum. It is the financial equivalent of stuffing the ballot box. The ALP and the Greens act as if the budget is some sort of union slush fund, deeming the taxpayers' purse as a source of revenue for their own campaigns. This announcement followed the debate that occurred in this place during budget week on the Referendum (Machinery Provisions) Amendment Bill 2013. In that debate, representing the opposition, I questioned the minister, at the time Senator Jacinta Collins, specifically about the funding for campaigns and the so-called education program. No indication was provided that only one side of the campaign would be funded. Yet the government and their Greens allies saw fit to suspend the provisions of the referendum act in order to allow abuse of the process in a manner never before experienced in more than a century of referenda. These provisions are decades old and were put in place in order to ensure basic fairness in the referendum process. In my lifetime they have only been suspended once, in 1999, and they were suspended specifically to allow equal funding for yes and no campaigns. Imagine the outrage if John Howard had funded the no campaign differently to the yes campaign.

I note that some of the advocates for this bill and proposal in this chamber have tried to construct a historical basis for this outrageous decision. Senator Milne referred to the 1999 referendum. But the suspension of the ban on public funds was undertaken with agreement across the parliament to ensure funding for both sides of the argument. Senator Milne also mentioned the intervention of the High Court in the 1988 referendum. But that was because the ALP government was breaking the law! Following the suspension of this longstanding rule by the ALP and the Greens, I questioned the department and the minister in estimates hearings. This time Senator Lundy was representing the government, and again the opposition was misled. Senator Lundy, representing the government, said:

Perhaps I can offer you an assurance the government will be doing everything to make sure it is a fair process.

She also said:

It is certainly our intention to have a fair process. … we will do what we can and make it as fair a process as possible.

So there we have it—a pledge for fairness. Then we had the announcement last week. Let there be no claim that this is all a subsequent decision that was taken since the estimates hearings, because earlier in the same hearing it was made clear that these matters were still under consideration. At no point before the vote in the House of Representatives was the government's intention to rort the process outlined or hinted at. To rely on votes in the House for the first time ever, without outlining the impact of members' votes on campaign funding, is dishonesty of the highest order.

Yet, as insidious as the assault on democracy entailed in the rorted funding decision is the treatment of the Senate by this announcement. Minister Albanese states in his media release:

The amount of funding to be provided for each case will reflect the proportion of Members that voted for and against the Constitution Alteration (Local Government) Amendment Bill 2013.

…   …   …

The two Members who voted against the bill will be asked to determine the distribution of this funding.

This represents as serious an assault on the Senate as I can recall. I cannot think of the debates, deliberations and votes of one house of parliament being treated so contemptuously. Senators in this place should hang their heads in shame if they support the government only considering the decisions of members of the House of Representatives. Unlike many, indeed most, other parliaments, the two houses of the Commonwealth parliament are coequal in all respects other than the specified instances regarding the initiation and amendment of money, taxation and appropriation bills. The Constitution itself reinforces this in section 53:

Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

Section 128 of the Constitution goes to extraordinary lengths to describe the process in terms in which both houses can initiate and indeed put a referendum to the people. Despite the system of responsible government that the drafters established, that they left open the possibility of one chamber initiating a constitutional amendment is itself a sign of the trouble they went to in order to ensure equality of the two houses.

For the first time ever when it comes to a proposal to amend the constitution, Labor are attempting to undermine this principle. But principle is of no concern to this government. In a mere press release, the ALP have undermined longstanding constitutional arrangements. Anyone in this place who takes their role as a senator seriously must condemn this. To grant the vote and deliberations of one chamber a funding authority yet deny that same consideration to the other and to then grant the power to disburse that funding to members of one chamber and deny it to the other represents a grave assault on this Senate.

But this is just another step in Labor's century-long war on our constitution. Undermining our constitution has always been Labor's objective. As they have failed to convince the people again and again at referenda, Labor now attempts to rig the process—to fix the outcome—as if it is a dodgy union ballot. Labor's constitutional history is a litany of attacks on the Senate and our federal arrangements. A little history is important here, and it is a secret history the ALP does not want you to know. I can guarantee it will not make it into the ALP's national curriculum, as it is a history the ALP wants to hide. They are secretly ashamed of it, because the truth is that Labor had no hand in the formation of our nation. Labor had no hand in Federation, other than an attempted spoiling role. The labour leagues and the labour parties opposed federation. In the words of Stuart McIntyre, referring to the efforts of Henry Parkes in the early 1890s, following the 1891 convention:

In its political infancy the labour movement had in effect vetoed federation.

McIntyre also wrote, as the process of federation moved forward despite the efforts of the labour movement, leagues and parties:

The pro federal alliance of leading politicians, liberal and conservative, protectionist and free-trade, deprived New South Wales Labor of its power of veto and threatened to marginalise the smaller labour parties elsewhere.

When it came to elections for the later constitutional conventions, Labor's opposition to federation was reflected in their electoral failure.

In New South Wales, Labor ran candidates for ten seats; not one was elected. In South Australia Labor accepted four positions on a joint ticket led by Kingston; all four failed. Only in Victoria was there a successful labour candidate, a member of the joint ticket of the Ageone out of 50 delegates; completely irrelevant to federation. Following the conventions, Labor's true colours were shown at the subsequent referenda in 1898. That constitution was put to the people in New South Wales, South Australia, Tasmania and Victoria in June 1898. The Labor Party campaigned for a no vote in New South Wales, South Australia and Victoria, and its allies did so in Tasmania. Despite Labor's opposition, this great project succeeded.

The federation project and our constitution was a project of liberals—some radical, some more conservative, some protectionist, some free-trading. But to all, the caucus and pledge that are so integral to the ALP then and now were utterly anathema.

I am constantly amazed by the attitudes of senators and members of other parties who attack those of my colleagues who dare to express a view different to their own party. Still, today, more than a century on from Federation, the drones of the ALP cannot cope with people expressing a view contrary to their pledge which places obedience above conscience.

The ALP could never accept that Deakin, Inglis Clark and Griffith would place checks upon the power of your new caucus and the mindless pledge you instituted. The pledge is a cowardly device, used as an excuse to absolve individuals of responsibility for the votes they cast in this place. Our refusal to have one is a difference that we are proud of. That we will never have a pledge is a difference we will always promote.

Even more objectionable to Labor was that the checks of a second chamber of parliament, a written constitution and federation were all endorsed by the people, and have been at every opportunity since. As Federation happened despite the Labor Party, it has long been hostile to our constitution.

Since then, the ALP has sought to attack the constitution at referendum after referendum, their last success being in 1946 with support from all levels of government across the country. Most failed referenda have been proposed by the ALP—overwhelmingly focused on centralising power and increasing the role of Canberra; often hidden behind the veils of national development or economic control.

Labor's century-long war on our constitution finds its modern expression today through this biased funding of the referendum campaign and the rigging of debate, the attempted stacking of a referendum. The ALP has no defence for this, merely excuses. The ALP has argued that public opinion should be a guide, but how do they determine this? That is the very purpose of a referendum. If we are to use polls, then why not use polls for public funding of elections? That would be patently absurd. Yet this is no barrier to the government when it comes to this referendum—if they cannot win fairly, they will seek to stack the process in their favour. We should remember it was Queensland ALP who first put in place the Australian gerrymander. And now they are trying to rig this process as well.

The ALP has long been frustrated by its extraordinary lack of success in amending the constitution. Time after time, they propose change and the people reject it. Then they blame the people. It always frustrates the hubristic left that the people have the final say. So now the ALP attempts referendum rigging.

From left and Labor-aligned academics, historians and lawyers, we hear terms such as horse-and-buggy constitution, as if something lacked legitimacy, purpose or practicality because of its age. This illustrates the hubris of the left, as if they somehow know better than the people, as they have expressed time and again through referenda. I will take my horse-and-buggy constitution, one of the oldest democratic constitutions in the world, against that phenomenon of the 20th century any day—the constitution of the sectional interest, the mob or the rifle.

Let me finish with a warning based on the history of referenda, for both the government and their Greens cousins. I know some of my colleagues are genuine proponents of this proposal and wish to see a fair process. But specifically regarding the funding issue and the announcement by Labor, I offer this specific warning: this sets a precedent that may not always favour your views. More generally, bipartisanship is a necessary condition for success in a referendum but it is not a guarantee. History is littered with examples of high hopes by governments—particularly ALP governments—as bills pass this place, only to be dashed on the rocks of the people actually casting ballots in secret.

On the same day in 1967 that 90 per cent of people voted for the referendum deleting section 127 of the Constitution and amending the race power, a bipartisan-supported referendum proposing the removal of the constitutional nexus between the House and the Senate was comprehensively defeated, with only 40 per cent support. More than half of the people who voted yes to one question also voted no to the other on the same day, despite them both having bipartisan support.

In 1977, on the day of successful referenda regarding casual vacancies in this place and the retirement of judges, the proposal for simultaneous elections for the House of Representatives and Senate failed. In both of these cases, the 'no' case was led by a handful of senators. In the case of 1967, I particularly note the efforts of several Democratic Labor Party senators who joined with several coalition senators in opposing that attack upon the Senate and who all won the day.

The Australian people take the notion of a referendum very seriously. To my mind, one of the greatest legacies of the drafters is that they prevented politicians from changing the Constitution. As it can only be altered with the direct consent of the people, it reflects their popular sovereignty. Despite Labor's attempts to rig this process through the most outrageous attack on the fairness of the referendum process itself, the final decision on this issue will be made by the people. The coalition does not oppose the people voting at referendum, but the process should reflect a fair debate.

11:47 am

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern and Remote Australia) Share this | | Hansard source

The Constitution Alteration (Local Government) 2013 is a very important bill and a very important matter. As someone who spent 11 years happily and proudly representing the people of my home town of Ayr on the Burdekin Shire Council, it is something that I have had a particular interest in for some time. I was also, for three years, the federal minister for local government. During that time, I had many discussions with the Australian Local Government Association and the Local Government Association of Queensland about this very issue. It is not a new issue; it has been around for a long time. There have been referenda in the past that have also touched on local government.

No-one in Australia would not applaud and accept the work that local authorities do in their own community. They are the sphere of government that is closest to the people, and because of that they are the most responsive. The councillors are people who are totally connected to their communities. They understand their communities and what their communities want. In my home state of Queensland, councils range from very small councils—for example, Croydon up in the Gulf of Carpentaria, with 300 or 400 people in the whole shire—to the Brisbane City Council, which represents some millions of people. It is a government that is, if not as big as, certainly better than Tasmania, with respect to my two Tasmanian colleagues the chamber. Although I think they would agree with me that, at the present time, the Brisbane City Council is far better run than the Tasmanian government is. Elsewhere in Queensland, there are a range of councils, all of which I have interacted with for many years, as you would have, Madam Acting Deputy President Moore. By and large, they are a very professional group of people. Their administrations are very efficient, as I have been saying to a number of local governments that I have visited in the last three or four weeks whilst campaigning for the Queensland LNP Senate team and also for Noeline Ikin, the LNP candidate for Kennedy. She is a woman who I think we will see a lot more of in this parliament in the future.

As I have been meeting with those councils, I have been impressed yet again with their professionalism. As they come up to the budget season, I say to them all, 'It's a pity you can't go to Canberra and teach the Canberra government how to run a budget. If you ran your finances as badly as the Gillard government runs its finances, you would have been sacked and an administrator appointed long ago.' They understand that you cannot just keep borrowing and, if you do, somewhere along the line the crunch comes. This applies very much to local government but equally to the federal government. So I have a high regard for local government generally.

I said to local government 10 or so years ago, when I was the minister, 'You come to me with the right wording, with the support of all the state governments, and I will get a bill through parliament and we'll win a referendum on the subject.' But I warned them 10 years ago, 'Unless you can convince all the states on the wording of your bill, you're going to have trouble'—in effect, 'Don't waste my time or yours.' Since those times, I know they have put a lot of work into it. Local governments, with a lot of effort, have come up with what they believed to be the right words, so we are at this situation at the moment.

This is not a bill where we have to declare whether we are supporting the referendum question or not, but, with my background and with my association with local government, I am quite happy to say that I will be voting yes in the referendum. But I have to say I believe this referendum has been set up by the Gillard government to fail, and I fear that it will fail. I know that this will distress a lot of people. I know Councillor Paul Bell, a past distinguished president of both the ALGA and the LGAQ, very well. He is a committed Queenslander, a committed Australian and, indeed, he is committed to local government. He has been fighting for years for this referendum and to get it passed. I feel for him because, I regret to say, I do not think it is going to get anywhere. Councillor Margaret de Wit, the current president of the LGAQ, is an old friend of mine and a very good councillor on the Brisbane City Council. She is determined to do everything she can to get this bill passed and the referendum adopted by the people of Australia. As other colleagues have mentioned, the Premier of Queensland, Campbell Newman, a member of the LNP—I say that very proudly—has been one of Brisbane's greatest lord mayors. Of course, he fought very much for the constitutional recognition of local government in his time as lord mayor of one of the biggest council areas in Australia. And I know that Councillor Graham Quirk, the current Lord Mayor of Brisbane, is also in favour of it. And I could go through the whole of North Queensland and Central Queensland and mention all the mayors I have spoken to as recently as the last couple of months and indicate that all of them are working very hard to make sure that this referendum question does pass.

As other colleagues have mentioned in this debate, and in some more technical detail than I, effectively what local government want is to be able to receive grants from the federal government without any constitutional question. That is what their desire is in this bill.

I am again proud to say that I was the Minister for Regional Services, Territories and Local Government who in this very chamber introduced the bill for Roads to Recovery, one of the most far-sighted and beneficial programs, if I do say so myself, ever to have been given to local government. It is a program that local governments love because the money comes straight from the federal government to local government. It is put straight to work. There is no shaving a bit off the top, as used to happen in the days of the Bligh Labor government in Queensland and, in fact, under other Labor governments around the states. Always they would take off anywhere between 25 per cent to 40 per cent as on-costs or project management costs. But Roads to Recovery funding went straight to the councils and it was used efficiently and effectively. There were more kilometres of roads built through the Roads to Recovery program than councils had been able to build for many years. I was told at the time that, provided the amount going to each council was set out in the bill, it was constitutionally proper. If you have a look at that original bill you will see that each council and the amount they received are contained in that bill that was passed first in this chamber and then by the House of Representatives.

But there have been the Williams and Pape cases that have been mentioned by others which have thrown some doubt upon the ability of the Commonwealth to fund local government. I know Western Australia, Victoria and other states are bit cautious about this. I suspect even in Queensland at the moment there is caution. The Minister for Local Government, Community Recovery and Resilience is Mr David Crisafulli, who again I am very proud to say worked for me for some time when I was the federal minister for local government. David was the Deputy Mayor of the Townsville City Council. He is now the local government minister in Queensland. I know his heart is with recognition of local governments so that funding can flow. I know that he and most other state people these days are a fraction cautious because of legal advice that has been given that suggests that this bill is not appropriate and would in some way lessen the powers of the states. My understanding of the objection—and this is in very layman's terms; it is certainly not legal or constitutional terms—is that if the federal government can without restriction give grants to local government then perhaps a recalcitrant federal government in the future might decide that all money allocated by the Commonwealth government for, say, health, education or roads can go straight to local government. In Britain local governments run schools and hospitals. If that happened, the question would be: what would state health departments do on education, health and road matters? So by subterfuge a recalcitrant federal government of the future could abolish the states by starving them of significant Commonwealth funds for education, housing, schools, hospitals and roads and, in this way, make state governments irrelevant.

Some people would have said, particularly in the days when all state governments were held by Labor, that that would not have been a bad idea. But those of us who are federalists—and, of course, the Liberal Party and the Nationals are federal parties—believe there is benefit in Australia from having three levels of government. We support that. We think that state governments do have a role to play in the administration and delivery of services like health and education. We certainly do not accept or for a moment contemplate that all wisdom comes from Canberra. In fact, the more you travel around the remoter parts of our country, as I do regularly, you realise just how far away Canberra is—and I do not mean in kilometres.

As I say to many people in the regions, and in northern and remote Australia: Canberra is full of well-meaning and highly-educated people, but they simply have no understanding of what it is like to live and work in remote, regional or even urban northern and Western Australia and Queensland, or in other parts away from a capital city. And that is why having a system of government which represents people at closer levels is so important in Australia. That is why state governments are so important. I don't know what it is in other states, but in Queensland state members represent about 30,000 voters. Federally, of course, our lower house members represent about 90,000 or 100,000 voters. So, obviously, the connection between state members is far easier and greater than it is for my federal colleagues in the lower house. And, of course, local government, in many instances, is made of people who are your neighbours or your colleagues on the school committee, or fellow members in Lyons, Apex or Rotary, or in the swimming club or the various health committees around. So it is important.

So it is important to make sure local government can continue to receive funding direct from the federal government. It is also important, I think, that the ongoing role of the states is maintained. This is why I said earlier that, while I will be voting for this, I fear that this is not going to pass. My colleagues in this debate have made the very obvious, and I think irrefutable, argument about the imbalance in funding—and that is just unforgiveable in Australia. It does not matter what your view on anything is: in Australia, if you are having a referendum, both sides of the argument should be equally funded so that information gets out.

I am very concerned that the Gillard government, which is, typically, picking winners and losers and dividing Australia, as it always does, has effectively decided to fund one side of the argument and not the other. That is just unAustralian. It is unfair and it is not the sort of leadership we need from this federal parliament, or indeed the federal government.

Having said that, I am still fearful about the outcome of the referendum, because Australians will not really understand it—certainly people in local government and those of us in this room understand what it is all about, but the general public do not really care; they are not really interested. And in the couple of months that is going to be available for the proper campaign, the real facts and the real arguments are not going to get out. What Australians will think is: if in doubt, don't. I fear that is what is going to happen, in spite of the massive imbalance of funding for advertising.

This is why I said earlier that I think the Gillard government has set this up to fail. With so much of the Gillard government under the tutorship of Mr McTernan, it is all about the spin, it is all about the headlines in the paper, it is all about going to local government conferences and saying, 'Oh, fellas, we're all with you, vote for us—Ms Gillard's a great leader; we're with you.' But they do it in such a way that really limits the opportunities for local government to get this important piece of legislation passed by referendum.

We should have been having this debate 18 to 24 months ago. The debate should have been out there in the public. People should have been told what it is all about, how it will operate, what the facts and figures are, what the pros and cons are. That way, you would have had an informed group of people voting at the referendum. As it is, on 14 September most people in Australia, about 70 per cent of them, will be concentrating on one thing—and I say this with some confidence, because I too can read the opinion polls—and that is getting rid of the current government!

They are not too interested in whether local governments get funding or not. They want to look after Australia. They want decent leadership in the Australian parliament and in government. They are just waiting for that day not to get into some erudite argument about funding for local government and the Pape and Williams cases. That will not be foremost in their minds. Foremost in their minds will be, 'What can we do to rid Australia of perhaps the worst government Australia has ever seen and the worst Prime Minister that Australia has ever had?' That is what they will be concentrating on on 14 September.

To put this referendum on the same day is, I think, guaranteeing it to fail. That is why I think that, again as with so much that the Gillard government have done, it is all spin. It is all the fluff that you get the headline for. It is not a serious attempt to fix the proper channels between the three spheres of government in Australia. I fear for of those who have put so much effort into this. They have convinced me. As I said, I will be voting for it. But I think we will be in the minority for the reasons that I have mentioned. This will go down as yet another feature of the awful nature of this current government. It is just a bad government. This is another example of them building hopes and aspirations and then taking actions that will ensure that those things never have to be adopted. It just reminds me of the Prime Minister's promise—'There will be no carbon tax under a government I lead'—that was deliberately telling mistruths to the Australian public. This bill, I regret to say, will be the same.

12:07 pm

Photo of Richard ColbeckRichard Colbeck (Tasmania, Liberal Party, Shadow Parliamentary Secretary for Fisheries and Forestry) Share this | | Hansard source

I rise to make my contribution on the Constitution Alteration (Local Government) Bill 2013. It was not initially my intention to speak on this piece of legislation because there is a process that we all understand within our parties where consideration and discussion around pieces of legislation that come forward is held. We, like all other parties, conducted that process within our own party. But when I heard that the government had made the decision to gerrymander the case for the financial support of this recommendation I thought I had no choice. It is one of the more disgraceful actions that this government has undertaken—this government that in its initial incarnation in 2007 talked about more evidence based policy, this government that talks about consultation. I have to say that it talks about it a lot more than it actually practises it. For the government to make the decision to fund the yes and no cases based on the votes in the House of Representatives is, quite frankly, a simple disgrace, particularly given that nobody was given an indication that that might be the case before the vote was taken. In that context, it is the worst kind of gerrymander because it was completely and utterly hidden from everyone.

We know that there are a number of views in this place around the constitutional recognition of local government. We know that there has been a process of consultation and that there was an expert inquiry set up. We know that those discussions have been held. We also know what the recommendations of that process are. Like Senator Macdonald, the speaker before me, said, there will be a variation in views in relation to this. But for the government to sabotage the process in the way that they have is, quite frankly, disgraceful.

Last week, we had members of local government from all over Australia in town. They were very distressed at the circumstance that they found this debate in. They believed that the government had set them up to fail. They believed that this process would fall over because of lack of consultation and because of the way that the government was managing this. There was a resignation that this process to call for the constitutional recognition of local government would fail yet again. They believed that it had been set up by the government for that to happen.

That was exacerbated when the revelation came from Minister Albanese that the funding would be based on the votes in the House of Representatives. For two people, regardless of their political persuasion, to be deciding how that funding would be allocated, really destroys the fundamental tenets of democracy in this country. This is no way to go about amending our Constitution. That is what we are talking about. We are talking about the foundation rules of the way this country is governed. Yet the government seem to want to use it as a plaything or a political wedge. Are they trying to set up the federal Labor Party against conservative states? What are they actually trying to do here? They ignored their own inquiry, which recommended giving this process significant consultation and discussion with the states. Their expert panel supported a referendum in 2013. That is not so much of a problem. But it was subject to two conditions: first, that the Commonwealth negotiate with the states to achieve their support for the financial recognition options; and, second, that the Commonwealth adopt steps suggested by the ALGA necessary to achieve an informed and positive public engagement with the issue, as set out in the section of the report on the concerns about a failed referendum. So the Local Government Association themselves wanted to see an informed process of consultation. The first time that the minister wrote to his state government counterparts about this was February of this year. Yet he failed to develop any comprehensive public engagement strategy or campaign, and then he tried to gerrymander the yes and no cases through completely and utterly disproportionate funding.

I spent time in local government before coming into this place. People often used to ask me whether I enjoyed it. My regular answer was, 'Yes, but I'm not sure if I should.' It really was an enjoyable part of our democracy to be a representative of. I enjoyed the interactions in my local community. I understood the importance and the value of the Commonwealth programs that interacted directly with local government. The Roads to Recovery program, which has been spoken of by many in this chamber, was highly regarded and valued by us at a local government level. So of course there was concern when the Pape and Williams cases cast doubts over that funding. We have seen legislation passed through this place and the other place quite quickly, to provide some foundation for the continuation of that funding. But it does not take away the fact that the government has a responsibility, when dealing with changes to our constitution, to deal with them honestly and fairly. There is no doubt in my mind that they are not doing that in this case. You cannot justifiably say that the funding for the yes and no cases, based as it is, is honest and fair. There is no way known that the case can properly be put on a fair and equal basis with funding at the level that it is.

That is what has drawn me into this debate, as someone who has sat around the table in local government and who has now spent a fair period of time in this place. My sense of fairness was clearly motivated by the disgraceful performance of the minister and the government in their management of this particular issue. They sprung this onto the Australian people so close to the election when their own expert panel had recommended full consultation over a considerable period of time. In fact, the Electoral Commission said that they preferred a 27-week campaign. They commented:

There are significant risks associated with campaign development in such a short timeframe. For example, the period for market testing included is too short to provide assurance that the advertising materials are fit for purpose (consistent with the Government’s campaign advertising guidelines) for mainstream and a range of special audiences.

The truncated timeline includes suppliers working across weekends and public holidays—estimated costs will increase as a result.

Even the Electoral Commission is saying that this process is flawed. No wonder the local government representatives who were here last week believe that they have been set up to fail. No wonder that is the view.

I said earlier that this government have talked about evidence based policy and their evidence based policy development. Under what circumstances does this legislation or the approach to the yes and no cases fit those criteria? On what basis does it fit those criteria? It cannot possibly. How can you possibly provide an adequate campaign for the no case based on the funding that has been offered? It is one-twentieth of that being offered for the yes case, let alone including what other interested parties might end up contributing.

Senator Macdonald, just prior to my presentation, talked about the potential negatives that might occur from constitutional recognition of local government. It does have the potential to upset the Commonwealth-state balance of funding because it is possible for the Commonwealth to go straight past state governments to local governments. Isn't it a responsibility of the government in that circumstance to provide the pros and cons for the potential implications of this change to our Constitution? That is the thing that really gets to me more than anything else. We are talking about changing our Constitution based on something that has been done at the last minute and is inadequately funded for the yes and no cases. The government seems to think this is all okay.

No wonder there are huge doubts around the way this government operates. No wonder there is such scrutiny. No wonder there is so little confidence in this government in the broader community. This approach to the changing of our Constitution actually summarises quite neatly the perspectives that are being put to me about this government when I go out into the community. That is that they consult but do not listen. When they do consult it is show and tell. It is not a two-way discussion. They are there to tell you what they are going to give you. They do not ask you what you want. They are going to give you what they want to give you. There is no consultation about it. Then they do not act on the process anyway.

The government set up an expert panel to investigate this process. It reported, the government sat on the report and, at the last minute, perhaps because they needed another issue to distract them from the leadership, they decided to trot this out. They dropped it on the Australian people. They talk about fair process. They talk about equal funding. They talk about the fact that people need to understand this. But, when it comes to the funding of it, the process completely fails. Then, after the debate in the House of Representatives, after that process had been completed, they decided to announce that they were going to fund the yes and no cases based on the votes in the House of Representatives. If it had been a true process, a fair process, perhaps they should have given that information out beforehand so people could make a judgement on that. There were discussions in this place and the other place around voting on the piece of legislation, because there are a range of views, but of course the government kept that bit secret so they could set up the gerrymander. That is an absolute disgrace and it is an insult to this chamber. Perhaps that is a reflection of what the government thinks about this place—I am not sure. But I have to say it is of great concern to me.

As I said at the outset, it was not my intention to make a contribution in this debate. I have my views, but my party had made the decision that the Australian people should have the opportunity to vote on this matter and I was comfortable with that. That was the decision that my party had made. But from the outset I have been personally offended by the way that this government has managed the process. This is no way to manage an alteration to our Constitution. Like Senator Macdonald, I fear that this process has been set up to fail. The further it goes, the murkier it gets, basically because of the way that it has been managed, as I have discussed during my contribution. The government sprung it on the parliament and the Australian people at short notice, did not follow the advice of the expert panel, ignored the advice of the Australian Electoral Commission and then gerrymandered the yes and no case funding debates. What can you find in this entire process that could be considered straight, as you might put it in the Australian context? What could be considered to give this a fair chance of being debated properly within the Australian community so they can make a considered decision, an informed decision? Isn't that what this ought to be all about?

The thing that really disturbs me is the approach that the Australian Greens are taking in supporting this, when we hear from them consistently about open politics, about democratic process. We even hear their former leader talking about one world government, where everybody gets an equal vote. Yet they are not prepared to support equal funding of this particular case in this particular debate—and we are talking about our Constitution, the Constitution of the Commonwealth of Australia. The government wants to put a proposal to amend it through a completely and utterly rigged process. You could not call it anything else. You could not describe it in any other way at all. This deal is rigged. The unfortunate thing for people who might like to support the amendment of the Constitution in this place is that it is most likely set up to fail. I cannot describe my disgust at this process in strong enough terms, but I think anyone listening might get the gist. This is no way to treat the Constitution of the Commonwealth of Australia.

12:24 pm

Photo of Anne McEwenAnne McEwen (SA, Australian Labor Party) Share this | | Hansard source

I too would like to contribute to this debate on the Constitution Alteration (Local Government) 2013. I think it is very important to clearly put into the debate what this amendment to the Constitution is all about. What is proposed is a small but very important amendment to the Australian Constitution. I agree with other senators that we should not take lightly amendments to our Constitution and that we should not proceed down this path until such time as such a change has been thoroughly investigated. This proposed change to the Constitution does come after consideration by the community as a whole but, in particular, by the expert panel that was set up by the government to consider constitutional reform in local government so that local government would be specifically mentioned in the Australian Constitution. It also follows on from the report of the Joint Select Committee on Constitutional Recognition of Local Government, set up by the federal government, and including members of all parties, to further investigate how we could progress this very important issue.

What the amendment to the Constitution would do is ensure that local government would be recognised in the Constitution by inclusion of an express statement that the Commonwealth can grant financial assistance to local government. That is something that has been missing from the Constitution and it has been the subject of attempts to change the Constitution in the past. It is very important that we do make this change to the Constitution, because there is some debate as to whether or not the financial assistance that the Commonwealth provides to local government is safe and secure in terms of legal challenges. Of course, this is a change to the Constitution that has been proposed by local governments across Australia. I, along with many of my colleagues, was at a dinner the Sunday night before last with members of local government from around Australia, and the discussion there was wholeheartedly in support of this change to the Constitution.

I think it is important to reflect as well about what could potentially be at stake here if this bill does not get up and if the constitutional referendum does not get up when the federal election is held later this year. We are talking about the services local government provides with financial assistance from the Commonwealth. We are talking about services that are very valuable to all of our constituents and all of our communities. We are talking about important services that local governments provide such as child care. We are talking about services such as roads, which all of us know local governments provide and maintain. But there are lots of other services that local government provides that perhaps are not as well known. I am thinking of programs that assist people in aged care and people with disabilities. I am talking about really important locally based arts programs that assist artists to exhibit their works and promote them. I am talking about dog and cat management by local government as well. That is another important thing that affects all of us who are fortunate enough to have pets. I am talking about management of parks and grass verges, and bushfire management, which is very important in my state. I should also mention libraries, which are a very important service, particularly these days with the different kinds of technology available. Our local governments provide all of these services and they do it with the support of both state and federal governments.

One of the issues that has been raised about the proposed amendment and the forthcoming constitutional referendum is that somehow it will take away states' rights with regard to their relationship with local government. Nothing could be further from the truth. This amendment and the constitutional referendum, if successful, will not detract from the rights of states and the way that they interact with local government—and, of course, local governments are established under state acts. All that this amendment will do is ensure that the financial arrangements between the Commonwealth and local governments are secure.

I think it is disingenuous of the opposition in particular to run the half-hearted line that they do support the amendment but do not support constitutional recognition of local government. Senator Barnaby Joyce, the Leader of the Nationals in the Senate, was happy to stand on the stage with Minister Albanese at the local government dinner a couple of Sundays ago and wholeheartedly support this proposed change to the Constitution so that local government is recognised. I think there is some division in the opposition ranks as to what their position should be on this particular amendment and that is coming forward as they are trying to obfuscate the debate by dragging it out and raising all sorts of red herrings. When this is explained to the Australian people properly there will be overwhelming community support for this very important change to the act so that we can have a referendum on the constitutional recognition of local government.

12:29 pm

Photo of Jacinta CollinsJacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | | Hansard source

) ( ): I move:

That the debate be now adjourned.

Photo of John HoggJohn Hogg (President) Share this | | Hansard source

The question is that the motion moved by Senator Collins be agreed to.