Jun 6, 2013

Australia’s Constitution must reflect our modern world – Opinion – The Guardian

If we are to celebrate the giants in Australian public life then Robert Garran must be among them. A lawyer and passionate advocate of Federation, Garran was one of several hands that drafted our Constitution. When the job was done and the Australian nation was born on 1 January 1901, Garran became our first public servant when he was appointed head of the Attorney General’s Department. “I was not only the head, but the tail, I was my own clerk and messenger. My first duty was to write out, with my own hand Commonwealth Gazette No. 1 proclaiming the establishment of the Commonwealth and the appointment of ministers of state and to send myself down with it to the Government printer.” He helped establish Canberra and the Australian National University and was treasured by a succession of Prime Ministers for his meticulous far-sighted style. With 31 years at the helm of the Attorney General’s Department when he finally retired in 1932, he became our longest-serving departmental head, a record still unbroken.

The world that Garran inhabited was vastly different to the one we know today. Born in 1867, he grew up in Phillip Street in what is now the busy heart of central Sydney. His mother Mary had a deep distrust of milkmen so kept a cow in her backyard. It would wander alone and unhindered each day to the Domain where it would graze, returning home morning and night to be milked. Garran, aware that he lived in a mere moment in time, argued that the Constitution about which he wrote extensively must evolve as the world changed. A Constitution that does not contain “provision for its amendment with the development, growth and expansion of the community which it is intended to govern, would be a most inadequate and imperfect deed of partnership,” he wrote in 1901, with his colleague John Quick.

Garran would then no doubt be surprised to learn that the Australian Constitution has been amended only eight times in the intervening 112 years. That is because it is a durable document that has served us well as we have grown into one of the most prosperous and stable democracies on earth. Part of that durability can be put down to the intellectual craftsmanship of that original document. And partly, it is due to the sheer challenge of changing it, which can only be achieved via referendum.

When Australians enter their local polling booth to vote on the next Australian Government, they will also be asked to vote to amend the Constitution to include recognition of Local Government. When Mary Garran was tending her cow in what is now downtown Sydney, local councils were little more than administrative tools of State Governments. Keeping the streets clear of garbage and the roads graded for horses and carriages was their main task.

Yet click on the web-site of your local council these days and there before you is a vast array of activities and responsibilities. There are childcare and employment services, aged-care hostels and disability programs. Business support schemes and arts centres. It is a list that goes on and on and there’s nothing surprising about it. The Commonwealth knows this and for at least 40 years has been directly funding councils to provide them.

And Australians have come to expect this provision of service. The sporting fields where Australia’s greats began their careers are built and rebuilt with Commonwealth help, as are the halls and community centres where our most of our well-known stars first felt the magic of the stage. In Mount Isa alone, Greg Norman, Pat Rafter, Scott Prince, Simon Black, Deborah Mailman and ARIA-award winning didgeridoo player William Barton all began their careers with the help of their local council.

Despite the enormous role that Local Government plays in our daily lives, the Constitution makes not one mention of it. To address this, an expert panel led by former Chief Justice of the Supreme Court of NSW, James Spigelman AC QC in 2011 was asked to identify options for constitutional recognition of Local Government. It concluded that amending section 96 of our Constitution could proceed to a referendum. More recently, a majority report by a Commonwealth joint select committee reached the same conclusion and recommended that the referendum coincide with this September’s Federal poll.

The change being put to the Australian people is modest and practical. It simply adds into the Constitution the right of the Commonwealth to grant financial assistance to any State or to any local government body formed by a law of a State, under any terms or conditions as the Parliament thinks fit. It in no way changes the role of State Governments which will stay responsible for local councils. Under the Bill before the Parliament, the Commonwealth couldn’t provide funding with terms and conditions that wouldn’t be valid under State law. It also does not interfere with the State’s rights to change local councils through, for example, amalgamations or by sacking them if the need arose.

What it does is provide Australia’s 565 councils with financial certainty that they can continue their daily work. That they can continue to receive funds for their swimming pools, bike paths, main street rejuvenations, the Roads to Recovery program and town hall face-lifts. As councils have changed as the years have passed, our Constitution will reflect that.

It is pleasing to see political bi-partisanship on this issue. This important piece of national housekeeping will enshrine the right of Australians to keep our suburbs and towns strong and connected. This referendum is a great example of our democracy at work. It is a move, I am sure, that Robert Garran and those others who founded our nation would have thoroughly approved.