Constitutional change makes sense

OPINION: Australia's first referendum in 14 years promises a small, but significant change to the Constitution. Recent High Court decisions cast doubt on whether the federal government can provide direct financial assistance to local government. This includes a decision last year that struck down the national schools chaplaincy program.

Local government relies heavily on federal funds to provide important community services. A good example is the popular Roads to Recovery program. There is grave concern about whether this program could survive a constitutional challenge, and indeed whether the Commonwealth can directly fund child-care centres, libraries and other local government services.

It makes sense to change the Constitution to fix this problem. The change should not grant extra power to the Commonwealth, just make sure that direct federal funding for local community infrastructure and services can continue.

The referendum has merit, but has been left dreadfully late. The government's expert panel reported in December 2011, but it is only in recent weeks that the government has been seized with the idea of adopting its recommendation to run this referendum.

Still, it is a case of better late than never. Leaving things this late in the electoral cycle is not unusual, but it certainly makes the task of winning a federal referendum for the first time since 1977 all the harder.

The government will soon introduce legislation into the Federal Parliament to initiate the referendum. This will set out the wording of the change. It is expected that people will vote on a small alteration to section 96 of the Constitution.

That section already provides that the Commonwealth can grant money to the states. The addition of a few words would clarify that funding can also be given to local government.

It is important that these new words only authorise federal funding. They need to be carefully scrutinised to ensure that they do not give the Commonwealth new power to wrest control of local government away from the states.

The Labor Party has a dismal record of wining referendums. It has run 25 of Australia's 44 polls held since 1901. Of those, only one has succeeded. That solitary success came in 1946 under Prime Minister Ben Chifley.

Labor's 24 referendum losses display a remarkably consistency. In every single loss, the ALP failed to gain the support of the opposition. This demonstrates the iron rule of referendums in Australia: people will vote No unless the change to the Constitution has support across the political spectrum.

There are good indications that senior members of the Opposition, including Tony Abbott, support this change. The test of this will come when the bill for the referendum is voted on in Parliament. Even if members of the opposition vote for the bill, maintaining their support all the way to the ballot box will be one of Labor's biggest challenges.

George Williams is a Professor of Law at UNSW. 

This opinion piece was first published in The Sydney Morning Herald.