The Forum > Article Comments > Should local government be in the Australian constitution? > Comments
Should local government be in the Australian constitution? : Comments
By Don Aitkin, published 14/5/2013Why you should care about September's referendum.
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http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22committees%2Fcommjnt%2Fb1be7f36-6faf-4129-9dcc-edb4e15956a1%2F0001%22
Professor Twomey has the final say:
"First of all I will just talk about some of the points that I think are peripheral—to get rid of them—and then move to the core issues. The peripheral points concern other reasons why you might want constitutional recognition of local government in the Constitution. One of the reasons that is sometimes stated is that local government is a third level of government in Australia and it should be recognised in the Constitution. This, I think, is a bit of a misleading argument. Technically, local government is not a third independent level of government in Australia; it is a sublevel of government of state government.
Our Constitution is a dualist system. It has two levels of government—a federal government and a state government. If you were to introduce local government as a separate, independent third level of government you would have to change a whole lot of other provisions in the Constitution. First of all, you would have to have powers of local government to make laws. You would have to have rules about how those laws conflict with the laws of the Commonwealth and the laws of the state and how it all fits together. You would have to change other provisions of the Constitution, like section 114; where local government comes under a state for the purposes of local government property not being able to be taxed by the Commonwealth; you would have to change your implications, like the Melbourne Corporation implication that protects state governments from Commonwealth government action. You would have to have a similar principle in relation to states and local government, and it would be very complicated and I do not think anyone is proposing to do that.
Although many of us, probably including me, have often described local government as a third level of government, I think that for these purposes that is not what we are trying to do. If we could avoid that sort of loose discussion to avoid those sorts of issues, that would probably be helpful.