Open democracy in New South Wales local government elections.
There wasn’t much live coverage from the other media outlets of the New South Wales election results. And no attention was given to the eight local government referendums and two advisory polls put to voters throughout the state, which is unique to New South Wales.
Throughout the Common(wealth) Knowledge series, the word ‘constitution’ has usually been applied to legal documents that set out the fundamental aspects of a particular government. It is also applied in a corporate context.
For example, the Australian Constitution determines the relationship between the Commonwealth government and the public, the Commonwealth and the States, the Commonwealth and the Territories, and between the three branches of government and the two Houses of Parliament.
Corporate constitutions operate similarly, governing the relationship between the directors, company, and members. These are both ‘contracts,’ which is where the term ‘social contract’ comes from.
However, this term is a bit different for local governments. As seen in Common(wealth) Knowledge #62, local governments are at the bottom of the federal totem pole. State governments, and the Northern Territory government, have complete control over them.
Legislation determines most of their relationships for them. They don’t need a constitution to define their powers, whereas section 51 of the Australian Constitution sets out many of the Commonwealth government’s general powers over the country.
This just leaves how they are made up, or ‘constituted.’ This includes questions like the number of councillors or wards/divisions. The Local Government Act 2009 (Qld) sets out the contrast between the two groups.
Part 1 is the relationships established by legislation. These cannot be changed. Part 2 is the ‘constituted’ aspect.
In Queensland, section 18 states that only the Minister for Local Government can propose a Part 2 change, which is then assessed by the Change Commission. This requires local community support and the backing of the local government.
However, the Change Commission can dismiss a community-backed change if it goes against ‘public interest.’
New South Wales takes a very different approach. It requires a referendum, which is closer to amending a corporate constitution. All voters get to have an equal say in the proposal.
Chapter 4 of the Local Government Act 1993 (NSW) is titled ‘How can the community influence what a council does?’ and, under it, Part 3 is titled ‘Expressions of community opinion.’
The New South Wales approach is very much based on the language of ‘open democracy,’ rather than the local consultation in the Queensland process.
This approach is subjective, rather than the objective principle of ‘public interest.’ In other words, this is a debate between ‘local people know what’s best for the local community’ and a policy-based approach affected by the state government.
Local government constitutions can touch on four questions:
(a) divide its area into wards or abolish all wards in its area,
(b) change the basis on which the mayor attains office (that is, by election by the councillors or by election by the electors),
(c) increase or decrease the number of councillors in accordance with the limits under section 224,
(d) change the method of ordinary election of councillors for an area divided into wards.
These are questions that would fall under ‘Part 2’ of the Queensland model, and the equivalents found in the other States and the Northern Territory. Section 16(d) is the rarest of the four. Section 16(c) is also affected by section 224, which requires at least three councillors per ward.
Both Uralla and Central Coast voters had to consider changes under sub-sections (a) and (b), while Woollahra had (a) and (c). Kyogle voters had to answer all three.
Central Coast, Woollahra, and Kyogle voters were only asked one question containing all proposed changes. Uralla voters had two questions, meaning the sub-section (a) and (b) changes were separate.
Greater Hume Shire’s 8,243 voters faced two confusing questions. Question 1 proposed a sub-section (a) change. Question 2 was a vote to maintain the status quo. Rather than just having a single yes/no question, having two questions means that ‘donkey votes’ could cause both questions to be answered as ‘yes’ or ‘no.’
So, while New South Wales may be the only place to have local government constitution referendums, it may also be home to the only local government to both have and not have wards.
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