I do not favour putting to referendum a proposal to amend Australia’s Constitution to recognise local government in this federal document. Such a proposal muddies the relationship between the Commonwealth and the states, which is the central function of our federal Constitution. Furthermore, it opens the door for further centralisation as the Commonwealth would be able to bypass the states and deal with local government directly.
The drafters of our constitution divided power solely between the Commonwealth and the states. Local government is not recognised in the Constitution because the constitutional convention decided to create an authentic federalism. As such, federations are characterised by the union between autonomous states for the formation of a new central government.
To recognise local government in a federal document is akin to creating an entirely novel type of federation formed by the union between the states and … municipalities!
In a more practical sense, the idea that local government should have a greater role in the Australian federal system seems to hide a centralist agenda, which would allow the federal government to implement, directly through local government, policies that the federal government thought were being impeded by state governments.
Currently, local government is used by the Australian states for exercising aspects of their own administrative functions. Hence, local government is created and maintained by state legislation; the geographic extent of local government districts is determined by state legislation; and the powers of councils are conferred by state legislation.
In this sense, the recognition in the constitution of local government would lead to the further weakening of state legislative powers. It would have the inevitable effect of further empowering the Commonwealth to implement the homogenisation of policies in the states, even if this was contrary to the will of any individual state. Of course, this would reduce all the more the capacity of the states to maintain their own identities, laws, government structures and administration.
For these reasons, Australian voters would be quite justified in suspecting that such a proposal may represent another symptom of “creeping centralism”, vesting more power in the hands of Canberra to the detriment of the states, and potentially to the detriment of local government itself.
Augusto Zimmermann, LLB, LLM, PhD (Monash), teaches legal theory and constitutional law at Murdoch University, Western Australia. He is also president of the Western Australian Legal Theory Association (WALTA) and editor of The Western Australian Jurist. He recently published a widely acclaimed book, Western Legal Theory: Theory, Concepts and Perspectives (Sydney: LexisNexis Butterworths, 2013).