Alga Caseforchange Web Version

7/30/2019 Alga Caseforchange Web Version

1/12

A u s t r A l i A n l o c A l

G o v e r n m e n t A s s o c i A t i o n

THE

W h y L o c a L G o v e r n m e n t

n e e d s t o b e i n t h e

a u s t r a L i a n c o n s t i t u t i o n

N O V E M b E r 2 0 1 2


2/12

W H Y W e n e e D A c H A n G et o t H e c o n s t i t u t i o n

All Austalians live in local communities and use local acilities evey day. They use local oads, ootpathsand cycle-ways, paks, playing elds, swimming pools and liaies. Thei uish gets collected egulalyand evey time it ains the wate dains away though a stomwate system.

Austalians pay o, manage and own these sevices though thei local council and they elect theicouncillos to make sue local govenment meets thei needs. Each community is unique, with dieentneeds and dieent capacities and each council is dieent. but they all shae one thing in commongetting the est outcome o thei local communities.

O couse, councils cant do the jo o meeting the communitys needs on thei own. Local govenmentmust wok in patneship with the othe two levels o govenmentthe Fedeal Govenment and the Statesand Teitoiesto delive sevices and inastuctue at the local level. Poviding the inceasing angeo sevices expected y the community is oten eyond the limited esouces o local communities, localatepayes and theeoe most councils. Gants om othe levels o govenment ae citical. And it iseasonale to expect that some o the taxes paid to the State and the Fedeal Govenment will e used to

povide sevices and inastuctue at the local level.because most o the tax paid y Austalians goes to the Fedeal Govenment (moe than $4 out o evey $5in tax is collected y Fedeal Govenment) it is impotant that the Fedeal Govenment can povide undingdiectly to councils to meet local community needs. The Fedeal Govenment has een doing so now omoe than 10 yeas, since the Howad Govenment estalished the roads to recovey pogam to helpmaintain local oads. The rudd and Gillad Govenments have continued and inceased that diect undingand have also povided unding o othe local community inastuctue. This has allowed many illions odollas to e invested y councils in local inastuctue and sevices and it is dicult to know how manycommunities would have coped without this unding.

recent decisions in the High Cout have, howeve, cast dout on the Fedeal Govenments aility to povidethis diect unding to councils. The Constitution does not mention local govenment, no does it povide o

the Fedeal Govenment to und councils diectly.To x this polem we need a simple change to the Constitution to allow the Fedeal Govenment tocontinue to povide diect unding to councils so they can continue to meet community needs. It wontchange the way councils ae elected o how they wok, o the State Govenments aility to make changesto councils i they think that is necessay, ut it will help to make sue that communities get the localsevices and inastuctue they need and deseve.

Published by: Australian Local Government Association ABN 31 008 613 8768 Geils Cour t Deakin ACT 2600 Pho ne (02) 6122 9400 Fax (02) 6122 9401 Email [email protected] Web w ww.alga .asn.au


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s e r v i n G t H ec o m m u n i t Y

Evey Austalian is touched y local govenment and eveyone makes use o a council pogam, seviceo acility. In thei daily activities people use council-uilt oads, council paths, council paks and enjoycouncil pools and playing elds. but thee is much moe that local councils do to suppot the community

that people may not ealise is a council sevicestomwate; waste and ecyling; planning and uildingstandads; climate change adaptation measues; envionment consevation; liaies, at galleies andmuseums; social and welae sevices such as childcae, youth sevices and aged cae; pulic healthsevices such as ood inspection, animal licensing, immunisation and pulic toilet acilities; caavan paksand camping goundsae among the sevices povided y local councils.

Local government has been looking after the needs of Australian people since 1840, when the rstcouncil in Adelaide was estalished to povide oads, idges and pulic uildings. Councils today povidemany moe sevices to espond to the needs o thei communitiesto uild esilience and staility inthei communities and to meet the needs and expectations o thei esidents. In many communitieslocal govenment is one o the lagest employes and puchases o goods and sevices, contiutingsignicantly to the local and egional economy.

There are more than 560 councils across Australia, but no two are the same. Each council is differentecause it esponds to the unique needs o its community, ut evey council shaes a common goaltoachieve the est possile outcomes o its community.

Ate es and foods, the local council is thee to estoe and euild the community. The council wokso its esidents evey day o the yea.

e l e c t e D B Yt H e c o m m u n i t Y

Local govenment is a democatically elected level o govenment which is diectly accountale to the localcommunities it seves.

Local councils ae the voice o thei communities and ecause they ae the level o govenment closest tocommunities, they ae ale to identiy community needs and nd solutions. Councillos and council stalive locally in thei communities. The elected councillos and sta ae geneally the closest point o contactetween the people and govenment.

Local govenment woks in patneship with edeal and state govenments, as well as with usinessesand othe sevice povides, to delive the most appopiate sevices to the community.

Local govenment consults with the community in a ange o waysliaison goups, stakeholde engagement,

pulic oums and woking goupsto nd local answes to local issues and is the most accessile level ogovenment when it comes to community contact with elected leades and pulic sevants.


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H o W l o c A l G o v e r n m e n ti s F o r m e D

Local govenment is estalished unde state and teitoy govenment laws. The stuctue, powes andunctions o local govenment ae detemined y state and teitoy govenments and this will not change.Howeve, local govenments place and ole as the thid sphee o govenment needs to e included in the

Constitution, which sets out how the Fedeation woks.

m e e t i n G t H e n e e D s o F A m o D e r n s o c i e t Yl o c A l G o v e r n m e n t s e X P A n D i n G r o l e s i n c e F e D e r A t i o n

When the rst local council was established in 1840, before some of the colonial governments, its rolewas to uild oads and pulic uildings o the community that could not e povided y centalisedadministations. Local govenments ole has expanded damatically since then.

Its sevices have widened to include aeas such as planning, envionmental management, eceation,egional development and human sevices. Local govenment today povides aound 150 sevices toits community, using only 3% of taxation revenue, raised through fees and charges and the only localgovenment taxpopety ates. It is the lowest-taxing level o govenment and unlike edeal o state taxes,popety ates go ack in to the acilities and sevices used y the community. Austalians can see wheethei ates ae going.

The community expects local govenment to espond to local needs, which is why the ange o sevicespovided y local govenment has inceased damatically. Howeve, poviding the inceasing ange osevices expected y the community is oten eyond the limited esouces o local communities, localatepayes and most theeoe most councils. Gants om othe levels o govenment ae essential.

One o the most successul patneships etween the Commonwealth and local councils has een the

roads to recovey pogam. Estalished in 2001, this pogam has deliveed national ojectives diectlythough local govenment, eneting local communities and enhancing economic capacity and oad saety,paticulaly in ual and egional aeas.

As the thid sphee o govenment, local govenment woks in patneship with the Commonwealth andstate and teitoy govenments. Though its memeship o the Council o Austalian Govenment (COAG),local govenment is closely consulted on national policies and is inceasingly called upon as a patne in thedelivey o Commonwealth initiatives.

Yet despite the evolution in the oles o all levels o govenment since Fedeation, the nations amewokfor the governance of the Australian Federation, the Constitution, has changed little since 1901. Localgovenment is not mentioned in the Constitution, no has the Constitution een changed to efect the

geate ole and esponsiility undetaken y local govenment.Consequently the Constitution does not efect how moden Austalia is govened and how the dieentlevels o govenment wok togethe o the communitys enet.


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c A P A c i t Y t o c o n t i n u et o P r o v i D e Y o u r l o c A l s e r v i c e s

O the estimated 250 taxes in Austalia, local govenment has only one taxthe ates levied onproperty. This accounts for only 3% of Australias total taxation revenue. The States raise 15% and theCommonwealth Government raises 82% of taxation revenue. Funding from the Commonwealth accounts

for around 7% of local government revenue but this funding is vital to providing local services. In relativetems the unding om the Fedeal Govenment has een alling in ecent yeas at a time when manycouncils ae stuggling to povide the level o sevices equied y the community.

Without greater funding from the other levels of government, there is a real risk that local governmentswill e oced to educe sevices and delay epai wok. Tying to aise moe evenue though popetyates is not an option o many councils and most State Govenment udgets ae aleady stetched.

As the Commonwealth collects the majoity o taxes in Austalia, Commonwealth unding is vital tosuppot council sevices.

An independent report by PricewaterhouseCoopers in 2006 estimated that the impact of under-funding oflocal govenment was a $14.5 illion acklog in epaiing ageing local community inastuctue such as

oads, swimming pools, liaies and town halls.While the report made recommendations on how councils could become more efcient it also highlightedthe need o local govenment to seek additional unding om othe levels o govenment.

D i r e c t F u n D i n G t o c o u n c i l sB e n e F i t s Y o u A n D Y o u r c o m m u n i t Y

The Fedeal Govenment povides some unds each yea to States and Teitoies with the equiementthat they pass these unds on to councils. but this money is not enough to meet community needs. TheFedeal Govenment has theeoe inceasingly chosen to und local govenment diectly. Ove the pastdecade, edeal govenments om oth sides o politics have demonstated thei peeence to use diectunding though initiatives such as the roads to recovey Pogam and the regional and Local CommunityInastuctue Pogam.

It is clea the Fedeal Govenment wants to suppot local communities diectly and it has decided thatpoviding unding diectly to local govenments epesents the most ecient way o assisting localcommunities.

An impotant eason why the Fedeal Govenment has chosen to povide diect unding to localgovenment is that councils ae ale to espond quickly and eectively to local issues. Fo example localgovernment played a critical role in delivering 3,300 small community infrastructure projects to local

communities acoss Austalia duing the Gloal Financial Cisis.Thee ae ovious enets to diect undingless ueaucacy, no delays in unding eing eceived,geate local accountaility and geate tanspaency.


6/12

W H Y l o c A l G o v e r n m e n t i s n o tm e n t i o n e D i n t H e c o n s t i t u t i o n

At the time the colonies were discussing the formation of the Federation in the 1890s, the focus of attentionwas on national mattes and how the new Fedeal Govenment would wok with the new State Govenments.Consequently, thee is no eeence to local govenment in the Austalian Constitution.

Howeve, many thought local govenment should have een incopoated in to the Constitution at the timeo dating.

The growing role of local government that we see today was never envisaged in 1901. After more than a century,it makes sense to ensue that the Constitution efects how the Fedeation woks in moden Austalia.

Local govenment is one o the oldest oms o govenment in Austalia. It has poven itsel to e competent,eliale, innovative, adaptale and fexile in changing policy envionments and is committed to pogessingnational ojectives in collaoation with the othe levels o govenment. Its gowing ole in the Fedeationneeds to e suppoted though constitutional eom to povide the capacity o diect unding om theCommonwealth so that it can continue to meet the needs and expectations o local and egional communities

W H Y i s c o n s t i t u t i o n A l c H A n G eD i F F i c u l t t o A c H i e v e ?

Since 1901 very few attempts to change the Constitution have been successful. Of the 44 referendums putto the people since 1906, only eight have been successfulthe last one in 1977. Since 1977 there have beenthree referendums, covering six questions, none of which were successful. Before 1977, the referendum togive Aboriginal people the vote was successful in 1967, and prior to that a referendum to give power to theCommonwealth to pay social service benets in 1946. Australians will change the Constitution when theyelieve that it is sensile and ight.

However, the fact that there has been no successful referendum since 1977 means that many voters willhave no experience or knowledge in voting for a successful referendum. In fact, if you were born after 1959you have not voted in a successul eeendum.

Studies into why so many eeendums in Austalia have ailed suggest a nume o easons o this: ageneal lack o knowledge among the pulic aout the Constitution o how it can e changed (suveysshowing that only 18% of Australians have some understanding of what their Constitution contains, with47% unaware that Australia had a Constitution); the conservative nature of Australian voters; the difcultyo otaining the doule majoity (a majoity o votes in a majoity o states voting Yes and a majoity ovotes oveall voting Yes) equied o a eeendum to succeed; and a lack o ipatisan suppot.

The histoy o eeendums povides some impotant lessons aout the peconditions o success in a utue

eeendum. Fistly, the pulic must e inomed and suppotive o the poposition and must e convincedthat changing the Constitution will e in thei inteest. It is also essential o the poposition to haveipatisan suppot and o the pulic to see that the poposal is accepted y the majo paties.


7/12

W H A t H A s r e - i G n i t e D t H e n e e D F o rt H e r e c o G n i t i o n o F l o c A l G o v e r n m e n t ?

Two ecent High Cout decisions known as the Pape Case and the Williams Case deliveed in the space othee yeas, have handed down judgements that challenge the Commonwealths aility to und activitiesthat it elieves ae in the national inteest. These decisions have impotant amications o local

govenment, as oth cases have ejected the Commonwealths position that it has the capacity to spendmoney on whateve suject it wishes, o example continued unding o pogams like roads to recovey.

Legal advice om leading authoities conms that these High Cout decisions have ceated geatuncetainty aout the validity o Commonwealth pogams that povide unds diectly to local govenment.Such programs, including the $3.5 billion Roads to Recovery program, may be vulnerable to furtherchallenge in the High Cout. This theatens the nancial sustainaility o councils and the welleingo communities acoss Austalia and could mean educing o discontinuing vital sevices to localcommunities.

These ecent High Cout decisions have povided weight and ugency to the need o a change to theConstitution to allow diect edeal unding o local govenmentwhat is known as nancial ecognition.

The pupose o amending the Constitution would e to esolve the uncetainty suounding theCommonwealths aility to continue to povide diect unding. The only way to ensue the continuation ogeneal diect unding is though change to the Constitution y way o a eeendum.

This will secue the Commonwealths aility to continue to povide diect unding to councils to maintainlocal oads, inastuctue, sevices and acilities.

W H A t W i l l t H ec H A n G e l o o K l i K e ?

The Constitutional change to allow the Fedeal Govenment to diectly und local govenment is veysimple. There is already a section in the Constitution (Section 96) which allows the Federal Government tound state govenments and the section would e changed to add in local govenment.

Section 96 would be amended to read:

Paliament may gant nancial assistance to any state or local government body formed byor under a law of a state or territory.

This change would povide the Fedeal Govenment with the powe to e ale to povide unding diectly tolocal govenment whee this was in the national inteest.

Impotantly, this simple change to the Constitution would have no impact on how local govenments woko on thei elationship with state govenments.


8/12

W H Y t H i s i s t H eB e s t o P t i o n

In 2007 Prime Minister Rudd made an election commitment to progress the issue of the constitutionalecognition o local govenment. Since then local govenment has een woking with the Commonwealth,commissioning eseach, seeking specialist advice and undetaking extensive consultation to identiy the

est option o appopiate consitutional ecognition, which will e eadily undestood and suppoted y theAustalian people and theeoe have the est chance o success.

Ate ve yeas o wok, local govenment elieves nancial ecognition is a simple and ealistic solution tothe polem o diect unding highlighted y the High Cout.

but this is not only the view o local govenment. An independent Expet Panel appointed in 2011 y theFedeal Govenment has come to the same conclusion. It looked at all the options o ecognition o localgovenment including ecognition in a Peamle to the Constitution and moe complex changes to conmlocal govenments status and ole, ut in the end it suppoted nancial ecognition, which had the oadestpolitical suppot and the geatest chance o success at a eeendum.

All memes o the Expet Panel elieved that it was appopiate o the Commonwealth to have a diect

unding elationship with local govenment, when acting in the national inteest, and o that ight to eacknowledged in the Constitution.

Impotantly, the Expet Panel suppoted local govenments view that, although nancial ecognition was apagmatic solution and the est option, a nume o conditions needed to e met to ensue it had the estchance o success.

The Panel called on the Commonwealth to talk to state govenments to get thei suppot, and o a majopulic awaeness campaign so that the Austalian pulic had a ette undestanding aout the Constitutionand the eeendum pocess. Good eoms poposed at past eeendums have ailed ecause people didnot know enough aout the question, which let them open to misleading and exaggeated claims.

The 2010 ageement etween the Lao Govenment, the Geens and independents, included a

commitment to hold a referendum on the recognition of local government by the end of 2013.

W H A t c o n D i t i o n s A r e n e c c e s s A r YF o r A s u c c e s s F u l r e F e r e n D u m ?

We need to learn from the lessons of the previous 44 referendums in order to give any proposal the bestchance o success.

Thee needs to e suppot o the eeendum acoss all political paties.

The Govenment needs to lead on the issue and demonstate its suppot pulicly. The pulic need to e inomed aout ou Constitution, how changes ae made to it and the question

eing asked.

The pulic needs to e inomed in a actual way. An inomed vote makes an inomed decision at theallot ox.


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The last referendum was held in 1999. Many eligible voters will have had no experience of voting in aeeendum and how a eeendum woks.

A parliamentary committee in 2009 looked at the way referendums are conducted, and whether thereneed to be changes to the arrangements, some of them written in 1912. The committee concluded thatthee needs to e much ette and cleae inomation povided to votes, ecause votes who do not ullyundestand a poposal ae moe likely to vote no. The vote may have moe to do with a misundestanding

o the question o a ea o change, than a tue assessment and vote o the poposal, the committee said.The committee ecommended to Govenment that that a actual education campaign was needed pioto each eeendum to incease the undestanding o the pulic aout the Austalian Constitution. Italso wanted an independent non-political panel set up pio to each eeendum to e esponsile o acommunications stategy, including education mateials and how est to distiute them to all votes.

Local govenment elieves that such an education campaign is essential i a eeendum is to have the estchance o success.

W H A t H A P P e n s

n e X t ?

Local govenment is woking with the Fedeal Govenment, the Opposition, the Geens and the independentsto put in place the aangements o a eeendum on the nancial ecognition o local govenment.

An impotant step in the pocess is the estalishment o a joint paliamentay committee to let theCommonwealth Paliament examine the local govenment question. A paliamentay committee is the mosteective way o engaging with all sides o politics, otaining ipatisan suppot, and making consideedecommendations on the poposed change to the Constitution, timing o the eeendum and a pulicawaeness campaign, which can inom the pulic on the issue.

Local Govenment has welcomed the decision to estalish a Joint Select Committee on Constitutional

Recognition of Local Government and to ask it to provide a preliminary report by December 2012, followedby a nal report by February 2013, if possible.

Local govenment is committed to suppoting constitutional change to allow the Commonwealth to undlocal govenment diectly. The ovewhelming majoity o councils acoss Austalia have pledged theisuppot o constitutional ecognition o local govenmentspecically nancial ecognition. Ninety pecento councils nationwide have passed esolutions at thei council meetings to suppot nancial ecognition.Local councils elieve this eom is cucial i local govenment is to emain nancially sustainale in thelong-tem and e ale to continue to meet community needs.

Councils ae the est placed to make decisions o thei local communities, ecause councils ae pat o thecommunity and can est espond to the needs o thei communities.

Local govenment elieves that its gowing ole in the Fedeation must e suppoted though constitutional

eom to ecognise it as a level o govenment and povide the capacity o diect unding om theCommonwealth, so that it can continue to meet the needs and expectations o local and egionalcommunities. Ate 110 yeas it is time to include local govenment in the Constitution as the thid sphee ogovenment. Constitutional ecognition will potect what Austalians aleady take o ganted and give localgovenment the unding secuity to ette delive the sevices that the community needs and deseves.


10/12

Financial ecognition in the Austalian Constitution seeks to omalize and secue the unding which haseen eceived y local govenment om the Commonwealth o moe than ten yeas. This is needed toensue vital pulic sevices ae povided to odinay Austalians evey day o the yea.

To ollow pogess on the local govenment question o to nd out moe, visit ALGAs dedicated wesiteat http://www.councileeendum.com.au/

s o m er e F e r e n D u mF A c t s

> Any poposed law to change the Constitution must e passed y an asolute majoity o

Fedeal Paliament.

> A eeendum must e held no soone than two and no late than six months ate thepoposal is passed y Paliament.

> In the ou weeks ate the poposed ill to change the Constitution passes Paliament, amajoity o those Memes and Senatos who voted o the poposal and a majoity o thosewho voted against it prepare YES and NO cases. When a proposal is passed unanimously byPaliament, a NO case is not pepaed.

> The Goveno-Geneal issues a wit o the eeendum, polling day must e on a Satuday,and not less than 33 days or more than 58 days after the issue of the writ.

> The Electoal Commissione has the YES and NO cases pinted togethe with a statementshowing the poposed alteations, which must e eceived y evey electo no late than14 days eoe polling day.

> Voting in a eeendum is compulsoy. Votes need to tick a Yes o No ox to agee odisagee to the question eing poposed.

> To ecome law, the poposed constitutional change must e appoved y what is called adouble majority, which means that a majority of electors in at least 4 of the 6 states mustvote yes (the teitoies do not count in this), as well as a majoity o electos in Austalia.

> rules govening eeendums ae contained in the Referendum (Machinery Provisions) Act 1984.
http://www.councilreferendum.com.au/http://www.comlaw.gov.au/Series/C2004A02908http://www.comlaw.gov.au/Series/C2004A02908http://www.councilreferendum.com.au/


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> Local govenment, in seeking ecognition, does not seek to eak o change the elationshipetween itsel and the State and Teitoy Govenments.

> In the 1988 local government referendum, a democratic recognition proposal wasesoundingly deeated y votes and was not acceptale to State and Teitoy Govenments.Additionally, democatic ecognition would not have any eal eect on ectiying the polem

highlighted by the High Court decisions in 2009 and 2012. Similarly, symbolic recognitionwould not e a solution to the High Cout decisions.

> The 1974 local government referendum addressed direct funding or the nancial recognitiono local govenment. It was put to eeendum without ipatisan suppot, ate having eenejected twice y the Senate and was accompanied y an active no campaign. Nevethelessthe national vote at referendum supporting recognition was almost 47%. It demonstrates thatipatisan suppot is essential eoe any poposal is put to the people.

> The wording of the current nancial recognition proposal reects the lessons of the 1974eeendum. It incopoates woding to einoce to State and Teitoy Govenments that localgovenment intends to emain unde the juisdiction o State and Teitoy Govenments.

l o c A l G o v e r n m e n t D o e sn o t P r o P o s e t o c H A n G et H e r e l A t i o n s H i P i tH A s W i t H t H e s t A t e sA n D t e r r i t o r i e s


12/12

Wha wd a g f a g a f Aaa?

Recognising local government in the Constitution through a change to Section 96 will allow localgovenmentsand though them local communitiesto continue to eceive unding diectly om theFedeal Govenment to meet thei local sevice and inastuctue needs. This is the only way to potectedeal unding o community sevices and inastuctue.

Wha xay a g kg h fd?

Local govenment wants the Fedeal Govenment to continue to e ale to make diect payments to localgovenment, so that local govenment has the cetainty to continue to e ale to povide the level o sevicesexpected y the community. The Commonwealth has een unding local govenment diectly (o examplethough the roads to recovey pogam) o ove a decade. Financial ecognition in the Constitution is apactical solution to end legal dout ove this unding, ceated y two High Cout cases (Pape v Commissionerof Taxation in 2009 and Williams v The Commonwealth in 2012). The cases ceate uncetainty aout the utueunding o local govenment and the only way to esolve this uncetainty is o local govenment to e includedin the Constitution.

W h a y f a g?

Local govenment is not asking o moe money. It wants to ensue the Fedeal Govenment can continue

the cuent unding aangements whee it povides money diectly to local communities, though pogamssuch as roads to recovey.

Its actually aout emoving douts aout the Fedeal Govenments aility to keep doing what it is doingpoviding unding to local communities to enale them to povide ette sevices and inastuctue at thelocal level.

Why hd a sa ( ty) g pp h ppd hag?

State government budgets are under pressure and the Federal Government collects over 80% of taxation.Secuing unding o local govenments will mean that thei local communities will e ale to get the sevicesand inastuctue they need and deseve. This will not aect the states powes elating to local govenment.

if a g aady gzd a , why py hag h?

Local govenment is seeking constitutional cetainty o unding povided to it y the Fedeal Govenment.Amending state constitutions will not x the polemwhich is to allow the Fedeal Govenment to und localgovenment diectly to delive local sevices and inastuctue.

Dd h cwah G y h ay ad by h(Pap ad Wa) Hgh c d hgh pa ga?

Without changing the Constitution, there is no direct power for the Commonwealth to be able to fund localgovenment diectly. In the case o the roads to recovey pogam, which is aleady estalished unde

legislation, ALGA has sought legal advice which states that the Commonwealths solution does not addessthe roads to recovey pogam and the pogam emains open to constitutional challenge.

l o c A lG o v e r n m e n tF A c t s

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