The Referendum that Wasn't: Constitutional Recognition of Local Government and the Australian Federal Reform Dilemma
| Author | A J Brown,Paul Kildea |
| Date | 01 March 2016 |
| Published date | 01 March 2016 |
| DOI | 10.1177/0067205X1604400106 |
| Subject Matter | Article |
THE REFERENDUM THAT WASN’T: CONSTITUTIONAL
RECOGNITION OF LOCAL GOVERNMENT AND THE
AUSTRALIAN FEDERAL REFORM DILEMMA
A J Brown* and Paul Kildea**
ABSTRACT
In 2010, the Commonwealth government proposed Australia’s third a ttempt to give
federal constitutional recognition to local government. In 2013, the government secured
the passage through Parliament of a Constitution Alteration but, due to political events,
and amid much controversy, the proposed amendment was not put to the people. This
paper examines the merits and prospects for success of the proposed reform, with an
eye to lessons for the future of local government’s place in the federal system. It argues
that the legal and constitutional cases for the alteration were strong, but limited, and
poorly contextualised, the orised and articulated. We use public opinion evidence to
conclude that had it proceeded, the referendum result would probably have been a third
failure. These less ons are important for ongoing debate over sub-constitutional and
constitutional reform to Australian intergovernmental relations, including questions of
federal financial redistribution at the core of the proposal. Overall, the events of 2013
reinforce arguments that ref orms to the position of local government, while important,
should only be pursued as part of a holistic package of federal reform and renovation;
and that more robust deliberative processes and principles must be adhered to before
again attempting any constitutional reform.
I INTRODUCTION
On 24 June 2013, the Commonwealth Parliament passed the Constitution Alteration
(Local Government) 2013 (Cth), clearing the way for a third referendum intended to
afford local government an express place in the Australian Constitution. H owever, the
intention to hold the referendum in conjunction with the approaching federal election
was not fulfilled when the election date was brought forward from 14 September to 7
September 2013. On the leading interpretations of s 128 of the Constitutio n, this left
insufficient time to meet the requirement that a constitutional alteration may only be
* Professor of Public Policy and Law, Centre for Governance and Public Policy, Griffith
University; and member of the Commonwealth Government’s Expert Panel on
Constitutional Recognition of Local Government (2012).
** Lecturer, UNSW Law School, and Director, Referendums Project, Gilbert + Tobin Centre of
Public Law. The authors thanks Jacob Deem for considerable research assistance associated
with this article, and George Williams for valuable comments on a draft.
144 Federal Law Review Volume 44
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submitted to the electors two months after its passage through Parliament, given the
earlier date at which pre-polling and distribution of postal votes needed to commence.
1
By the time of its cancellation, the value of and prospects for the referendum had
become a major political and constitutional controversy. This i n itself reduced its
prospects for success; and means, as argued below, that its cancellation should probably
be assessed by history as a blessing, given the evidence of likely failure. One leading
constitutionalist described the proposal as possibly ‘one of the most inept attempts at
constitutional change’ ever attempted in Australia.
2
Rather than being a closed chapter,
however, this gives both the proposal and the controversies surrounding an ongoing
importance — for continuing debate regarding how proposals for constitutional change
should be developed and progressed; for wider federal reform questions; and for the
future of local government.
This article reviews, in turn, the history, merits and prospects of the proposed
alteration. It provides bot h a chronicle of a failed attempt at constitutional change, and
an assessment of what can be learned from it to inform future constitutional reform
endeavours. Revie wing first the history and then the merits, we argue that while the
legal and constitutional cases for the alteration were strong, they were poorly
contextualised, theorised and articulated. Crucially, they did not enjoy the type of expert
or political consensus required for success at referendum. Third , reviewing the
prospects, we c onclude that had the referendum been held, the result would pr obably
have been failure. In support of this, we explore empirical evidence of relevant public
opinion from the 2008, 2010 and 2012 Australian Constitutional Values Surveys,
3
as well
as public attitude research conducted for the Expert Panel on Constitutional Recognition
of Local Government (2011)
4
and other data. Fourthly, we examine the va rious process
failures of 2013, including government mishandling of the allocation of public funding
for the referendum campaign, and consider how these served to further weaken the
proposal’s chances of success.
Overall, the events of 2013 reinforce arguments that reforms to the constitutional
position of local government should only be pursued as part of a more holistic package
of reform and renovation to the federal system as a whole. Local government’s
1
See Constitutional Reform Unit, University of Sydney Law School, Local Government
Referendum (9 August 2013) <http://sydney.edu.au/law/cru/lgr.shtml>. The election date
was set on 4 August 2013. The window of a maximum of six months for the referendum to
be submitted to electors passed in December 2013.
2
Cheryl Saunders, ‘Reflections on the Local Government Referendum That Wasn’t’ on
University of Melbourne Law School, High Court Blog (23 September 2013)
<http://blogs.unimelb.edu.au/opinionsonhigh/2013/09/23/saunders-local-government-
referendum/>.
3
The Australian Constitutional Values Surveys (ACVS) were conducted by Newspoll for
Griffith University and partners, of stratified random samples of adult residents via stand-
alone twenty-minute telephone in terviews in May 2008 (n=1211), March 2010 (n=1100) and
October 2012 (n=1219). The ACVS was funded in 2008 and 2012 by the Australian Research
Council (ARC Discovery Project 0666833) and in 2012 by Griffith University and the
University of New South Wales. See Griffith University, Federalism
<http://www.griffith.edu.au/business-government/centre-governance-public-
policy/publications/federalism>.
4
See Expert Panel on Constitutional Recognition of Local Government, Commonwealth of
Australia, Final Report (2011). See especially at 19–22, app C.
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