There are some good people who feel local government should be recognized in the Constitution. But federation was the result of an agreement between the people of the colonies, later the states, “humbly relying on the blessing of Almighty God,” to establish a new entity, one of limited powers. This was to be our indissoluble Federal Commonwealth under the Crown. Local government, established by the colonial parliaments, was never involved.
It would be wrong to amend the preamble to the Commonwealth of Australia Constitution Act in order to slip in a mention of local government. The Constitution is part of that British Act, but drafted in Australia and approved by Australians. It was accepted by the British government with some minor changes, particularly in relation to the Privy Council.
A preamble speaks from the time when the instrument was made and it is wrong in principle to amend them. The bigger question is, as always, finance. There is a power in section 81 to make appropriations for the “purposes of the Commonwealth”. There used to be a strong view that this meant the purposes of the Commonwealth as defined by the Parliament.
But a few years ago a law lecturer and barrister, Brian Pape, challenged the validity of Kevin Rudd’s decision in the GFC to send out cheques of $900 to all sorts of people, including people living in Europe, some very rich people, and on some reports, even the dead.
Although Mr. Pape lost his case, he won on a very important point. The court trimmed Parliament‘s sails by indicating that the appropriations power is not unlimited. It was not for the politicians to decide the “purposes of the Commonwealth”. These are to be determined by the Constitution, in the ultimate analysis, the High Court.
So it is doubtful whether the Commonwealth can anymore directly fund bodies for purposes outside of its powers set out in the Constitution. For example, the Federal authorities have no direct power in relation to education. They can’t directly fund schools.
The Commonwealth can get around this by making grants to the states under section 96. Under this section the grounds can be conditional. Thus the Commonwealth could say to New South Wales, ‘We are giving you $100 million to give to Waverley Council to improve its garbage disposal system.’
The Commonwealth would like to bypass the premiers, who sometimes object to grants. (Premiers, unfortunately, are more likely to behave like those who have grabbed the Gonski money without any demonstration that outcomes will improve.)
There are five dangers in the states being recognised as direct recipients of Commonwealth largesse.
Local councils would gradually become agents of the Commonwealth, doing its bidding. This has happened to our universities, which are established under state laws. But as they say, he who pays the piper calls the tune. Universities are funded by Canberra and subject to the closest regulation by the Commonwealth. Apart from the excessive amount of bureaucracy and politically correct rules, the great disadvantage is that they become more and more uniform. If they had remained under the states, we would have got more innovation which of course encourages greater quality.
The second danger is that this would contribute to the downgrading of the states and the greater centralisation of power in Canberra. The states are too often willing servants of the Commonwealth while preaching all the good principles of federalism. In fact we live in the most fiscally centralised federation in the world, with the Commonwealth grabbing about 80% of the taxes and giving about half of that to the states, much of it with directions on how to spend it. It would be easy for the Commonwealth to bypass states for all manner of activities, many of them intended to be reserved to the states.
The third danger is that instead of councils having to go to their ratepayers to justify what they have done and what they will do, they will put out their hands to Canberra. Accountability is lost when you don’t have to explain how you spent the money you took from the people. That is an elementary principle of good government.
There is a fourth problem with the councils and that is that some have fallen under the influence of Greens and leftist councillors and are keen and eager to do the bidding of, for example, Agenda 21. This is a form of what international lawyers call “soft law”. These are declarations etc. which are not yet contained in formal treaties, but are observed voluntarily by willing agents in , for example, Councils. There they are working for some form of world government in which there will obviously be a democratic deficit. ( Reference to this is usually answered not by an explanation or refutation. The resonspe is usually an allegation of paranoia.)
The application of this can be seen the attacks on farmers and other landholders’ rights to use their land. There was recently a case in New South Wales where land was rezoned as what would be, in effect, a wilderness. One farmer found that when he had left a field fallow for a year, when he wished to resume growing crops on the land, he had to put in a Development Application to the council – an expensive time consuming process.
By swinging local government out under the effective authority of Canberra, they will become freer to follow international soft law under a favourably inclined federal government and bureaucracy. We should not think this will only occur under a Labor Government. The farmer Peter Spencer threatened to starve himself to death when the NSW government turned his property into a useless carbon sink by agreement with the Howard government which wanted to comply with the emissions targets in the same Kyoto Protocol it refused to formally ratify.
The fifth danger is with the High Court itself. It is sometimes willing to interpret the Constitution in the most novel ways. If councils are recognised, there may be ways as yet unknown that this will rebound against the states in future cases.
On their performance in, for example the GetUp! Case before the 2010 election, why would anyone tempt the judges with more power? The High Court there gave an urgent hearing to two people, deciding their claim was urgent. The Court held that the Parliament could not close the rolls on the day an election is called. It took the justices about five months to explain why, although you would have to turn the Constitution inside out to find authority to do this. GetUp! , by the way, boasted that as a result of this ruling, 100,000 extra voters were enrolled in marginal seats. They claimed this had ensured that a Gillard government took office in 2010.
As everyone knows – except some High Court judges – there is a tsunami of enrolments between the calling of the election and the closing of the rolls. One only needs an alleged driving licence number or passport number. It only needs to be signed in front of another elector . There is no opportunity to check them.
Imagine for example if say Mayor Powerbroker is in trouble and about to be dismissed by the state minister. Would he not say to the High Court that he is, if not immune, protected from this action.
Why give the judges this power? Why make Canberra more powerful? They show an extraordinary inability to perform their core responsibilities, such as defence and the protection of the borders.
Emeritus Professor David Flint is chairman of CANdo.org.au