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(E)merging Discourses: Local and Regional Governance in Australia and the European Union
MICHAEL LONGO*
Australia contemplates a form of governance that admits some local involvement in national decision-making. It reinforces democratic values through the imperatives of local participation and responsibility. The decentralisation of state structures through power sharing, and co-operation between different levels of government, is intended to increase efficiency by taking decisions as close as possible to the citizen. However, even if it is a recognised actor in policy formation, local government in Australia does not have federal constitutional recognition. Proposals to strengthen local government have failed not once but twice – in 1974 (proposal to allow Commonwealth to borrow money for, and to make financial assistance grants directly to, any local government body) and 1988 (proposal for federal constitutional recognition).[1]
Despite the failure of formal constitutional amendment procedures to bring about constitutional change, it would be inaccurate to describe the Australian federation as constitutionally inert. There is a long history of centralisation of power through the jurisprudence of the High Court of Australia,[2] which has arguably also produced a high degree of imbalance in federal/state powers and relations, and more than an element of misgiving.[3] For instance, the degree of fiscal imbalance between the Centre and the States is said to be greater in Australia than in other comparable federations, prompting questions as to what kind of federation Australia may be. This perception is perpetuated not only by the seepage of States’ powers to the Centre, but also by structural or formal weakness of local government which has precluded the development of a strong, financially secure local level capable of promoting its interests vis-à-vis the other tiers of government. Local governments in Australia extract far less funding than their counterparts in comparable federal jurisdictions for the exercise of their essential functions.[4] Not only do they have a poor revenue base, they have also been subjected to the practice of ‘cost-shifting’ in that local governments are required to undertake tasks for which they obtain no or insufficient funding.[5] The historical weakness of local government in Australia has entrenched the position of dependency of the local tier of government on favourable treatment by the States and the Commonwealth in terms of the allocation of appropriate competences and resources respectively. Dismal as this scenario may appear, it paints an incomplete picture of local capabilities, as formal deficiencies of local governance are juxtaposed by growing demand for improved policy and service delivery at the decentralised level and rapidly expanding competences. There are signs that a shift is underway, both in what local communities are expecting from their local representatives, and in their desire to participate more fully in local governance. Growing competences and capacity signal a new era of local development, spearheaded by the strengthening of informal representation and a pervasive local governance discourse which seems to be driving further change. Whether this shift has become sufficiently entrenched within the public consciousness to bring about a change in the formal status of local government will be tested when Australians are again asked to express a view on whether local government should be formally recognised in the federal constitution.
The centralising trend, accompanied by a steady drift of responsibilities towards the local level of governance, is of course observable in many jurisdictions around the world. As most European Union (‘EU’) legislation is implemented at regional or local level, EU governance demands a significant local input in the development of EU regulation. Regional and other sub-national actors have a presence in the EU’s institutional framework and a degree of agenda-setting power that is said to benefit the communities they represent. Local and regional interests are projected formally through the Committee of the Regions (‘CoR’) – a committee of 344 regional and local members. It is consulted by the European Commission, the Council of Ministers and the European Parliament in the course of drawing up legislative texts that impact on the regional or local level. While the CoR’s remit now covers most of the EU’s legislative proposals (having been expanded by the Treaty of Amsterdam) it still exercises a mainly consultative function. It does not have an explicit legislative role in the EU legislative process. However, the CoR is not alone in speaking for sub-national interests in the EU. Numerous representations of EU regional and local authorities are based in Brussels, and, notwithstanding the absence of official status, they appear to be increasingly wielding policy influence in the EU. Therefore, an informal network of sub-national authorities, together with institutionalised representation of regions and local areas in the CoR, exemplify the contemporary multi-dimensional operation of sub-national entities within EU supranational decision-making.
This article raises a number of questions, which, though pertinent to the local governance discourse in Australia, have remained poorly articulated. Are the imperatives of local action in decision-making processes being realised in Australia despite constitutional and institutional limitations? What pressures, forces or theories can explain the trend towards growth in the governance capacities of local government? Is local government currently able to respond adequately to Australia’s contemporary governance challenges despite structural weakness or is constitutional reform a precondition to enabling local government to be more responsive to community demands? How is the principle of subsidiarity construed in contemporary governance debates in Australia and how does this compare with the EU?
While the current state of knowledge does not provide a corresponding set of definitive answers, this article seeks to build on knowledge in the field of federalism studies. It will examine relevant theories and practices of local development and synthesise the disparate threads of the local governance discourse in Australia and the EU. This will be assessed with a view to understanding the trend towards growth in the governance capabilities of local government which has persisted despite ongoing structural deficiencies. It is beyond the scope of this article to provide detailed and systematic discussion of the role, functions and status of local government in the Member States of the EU, with specific reference to the position of local government under national constitutions. I am here predominantly concerned with the consultative and institutional arrangements between sub-national entities and quasi-federal EU institutions as an expression of the situation of the local governance discourse in Europe generally. Furthermore, the article will consider the potential agents of reform of Australia’s governance system, from the standpoint of subsidiarity and participation, drawing inspiration from contemporary governance debates in the EU.
Finally, while there are significant differences in Australia and the EU between regions and local government in terms of constitutional status, relationship with the centre and respective fortunes, this article will focus on the theoretical orientation of both levels in both locations to the ideal of devolution or decentralisation. For the purpose of this discussion, this article will frequently conflate the meaning of regions and local governments.
The concept of regionalism in Australia does not readily correspond with most Australians’ idea of state government.[6] Furthermore, it has become apparent that the relatively small number of states in the Australian federation is not at all representative of the diverse regions that make up the country. There are many more regions within the Australian popular imagination than the constitutionally-recognised states and territories.[7] This may incidentally also be the case in Europe, as regions do not always align with borders. Numerous bodies in Australia identify and systematise national regionalisations for various purposes. For instance, there are 69 statistical divisions based on agreed definitions of a region as identified by statisticians and used by the Australian Bureau of Statistics.[8] A federal report on regional development has identified 67 regions from an economic development perspective.[9] Twomey notes that ‘[d]ifferent sized regions are identified for different governmental purposes’,[10] and in so far as there is an ‘infinite number of potential purposes, there is also an infinite number of potential regions.’[11] Regionalism is therefore wrought with complexity on numerous fronts including the most basic issue of territorial borders and the establishment of new territorial units.
Scholars and others have addressed the contentious issue of abolishing the existing states and instituting a different system of governance. However, arguments for the further division of existing states into separate entities have been largely academic. The operation of the constitutional alteration provision in s 128 of the Constitution has acted to ossify institutional arrangements in Australia. The former British colony of New South Wales was subdivided in the 19th Century by the creation of separate colonies of Victoria in 1851 and Queensland in 1859, but this was prior to the enactment of the federal Constitution and its provision in s 128. A referendum in New South Wales in 1967 for the establishment of a new state in the north east of the State failed convincingly. There are still unresolved questions surrounding the interpretation of provisions in s 121 of the Constitution concerning the admission or establishment of new States[12] – they will be subject to the will of the Parliament – and the procedure by which this may occur, having regard to related provisions in ss 123, 124 and 128.[13] On reviewing pertinent literature and acknowledging the uncertainty, Twomey concludes that there would appear to be no need for a referendum of the voters in a State affected by the creation of a new State, although political pressure to hold such a referendum would probably prevail.[14] In any event, a referendum would be required to amend other provisions of the Constitution ‘to make a federation of many more States workable.’[15] Thus, while policy makers, academics and politicians may periodically advocate for the establishment of more States or the complete abolition of States and their substitution by local or regional governments, most would acknowledge the difficulty of this enterprise in the light of constitutional uncertainties and constraints. Consequently, despite real and continuing interest in regional restructuring,[16] any constitutional proposal for major – or even minor – reform can appear unrealistic or be accompanied by a sense of futility.
There is potential for conflict between the different levels of governmental authority when powers are shared in a federal system, which necessitates the formulation of rules to govern their interaction. It has been observed that conflict, differences and tensions between different units of governance are not always a bad thing in a dynamic or evolving system. This often acts as a catalyst for innovation and progress through the negotiation of different viewpoints.[17] However, conflict may be construed in negative terms in a rigid power-based system when conflict becomes ‘a polemical exercise in blame-shifting and confrontation’ or is simply reduced to ‘a passive symbolic ritual’.[18] Arguably, conflict and tension in the Australian federal system constitute a fiercely contested blame game between the Commonwealth and the States. Relations between these two levels are often fraught. The system has therefore required specific machinery to encourage genuine negotiation between the actors. A number of bodies, processes and mechanisms – primarily the Council of Australian Governments (‘COAG’) and Ministerial Councils – have been developed over the years to govern the relations between the different governments in matters of shared competence. Their objective is to minimise tensions and pacify conflict, consistent with the ideal of co-operative federalism. While co-operative federalism has tended to focus on relations between the Commonwealth and State governments, local government has recently been brought in. Local government participates in COAG and in various Ministerial Councils, through the Australian Local Government Association (‘ALGA’),[19] the body representing local government at the national level.
COAG emerged in 1992 as the peak intergovernmental forum in Australia in response to the practical need to coordinate decision-making between the different governmental actors. COAG comprises the Prime Minister, State Premiers, Territory Chief Ministers and the President of the ALGA. COAG meets once or twice a year with a view to reaching agreement on a range of national issues. COAG is therefore an important feature of contemporary Australian federalism, and is the critical decision making body within which local government has a small but growing role in developing and implementing reforms. However, COAG has limitations. The level of cooperation between the actors is largely determined by the political will and personality of the Prime Minister, as COAG is generally perceived as a creation of the Commonwealth. Its effectiveness is constrained by Commonwealth and State political cycles and the infrequency of scheduled meetings. COAG is not embedded in the Constitution nor does it have formal institutional status. The Business Council of Australia has called for the institutionalisation of COAG to ensure its continuing effectiveness regardless of political events and personalities.[20] COAG is supported by a range of Ministerial Councils, a well-developed system of executive government within a predominantly hierarchical bureaucracy, which carry out much of the issue-specific work necessitating coordination or cooperation as may be referred to them.
The Australian political climate has warmed markedly towards local government in recent times. The establishment of the Australian Council of Local Government (‘ACLG’) in September 2008, to engage local government directly with the Australian government on policy areas of mutual interest, is testament to a new spirit of cooperative engagement between these levels of authority. In addition there are forces operating in favour of the local level, among them, subsidiarity. The principle has crept into the Australian federal discourse[21] – following an explosion of interest in Europe and elsewhere[22] – to justify the shifting of decision making processes to a lower level, closer to the control of citizens.[23] Indeed, European governance literature is replete with references to subsidiarity as a mechanism for the protection of citizens’ rights.
As in Europe, ‘subsidiarity is widely invoked and supported [in Australia], but in practice it is hotly contested and could be used to justify a variety of practical outcomes in different circumstances.’[24] The meaning of subsidiarity is indeterminate and this has encouraged great flexibility in its interpretation and application, while also perhaps hindering progress. From an Australian perspective Head notes that:
[T]he principle of subsidiarity has attracted widespread support but without leading to long-term political and institutional changes. It has been invoked, firstly, by the States against the Federal Government; and secondly, but more recently, by local and regional entities against the State level ... The States have not seriously tried to devolve either revenue-raising powers or well-funded new functions to local government.’[25]
The principle of subsidiarity is predominantly managed in Australia through constitutional frameworks and ministerial councils, but it is constrained by constitutional realities, fiscal considerations, and a lack of clear criteria to guide its application.[26] While the system currently lacks the political incentives necessary for the Commonwealth and the States to take subsidiarity more seriously, its focus on ‘the effective coordination of the implementation of decisions and on arrangements that minimise the duplication of functions while promoting accountability and participation’[27] resonate strongly within current governance debates in Australia. Moreover, the orientation of the Australian federal system towards co-operative federalism and the emergence of the principle of subsidiarity as a justification for genuine devolution ensure that interest in EU debates on the interpretation, evolution and re-interpretation of subsidiarity remains alive.
While Australian law may be increasingly shaped by national law, a trend towards functional centralisation and decentralisation is discernable. In practice Australian federalism seems to be producing contrary tendencies. Centripetal tendencies have set the Commonwealth of Australia on a steady path towards centralisation, according to national priorities set by political, social and economic forces. Centrifugal tendencies emphasising the importance of local and regional participation in decision making, present an alternative vision of devolution of authority to the local level and decentralised delivery of public goods. Can these seemingly paradoxical or contradictory trends be reconciled? Are they in fact contradictory? Brown considers it ‘logical that centralising and decentralising pressures should be found operating together within contemporary governance debates.’[28] He posits that pressures for centralised federal governance are partly a reflection of the public dissatisfaction with the state level of authority which has invited federal intervention in policy spheres traditionally lying within state or local competence.[29] Two primary sites of federal intervention in recent times have been health and water rights. In both policy areas criticism of the state record of service delivery has been intense. While dissatisfaction with the states’ record could equally have resulted in pressure for more local service delivery, the historical weakness of local government has effectively counteracted this force. State governments have perpetuated the weakness of local government by keeping them tied to state political agendas. At the same time, a long tradition of involvement of large government departments in service delivery has historically worked to dampen popular expectations for a meaningful role of local government in this field.
Supporters of the federal form of political organisation often refer to the possibility of enhanced democratic participation in the political and policy processes of smaller polities. In his seminal book, A Federal Republic: Australia’s Constitutional System of Government,[30] Brian Galligan notes that federalism allows for increased democratic participation and political diversity. There is potential for producing differential policy outcomes in a federation, and accordingly federalism is said to encourage innovation and differentiation. Although the focus of Australian scholars has traditionally been on relationships between the States and the Centre, it is apparent that both these levels of authority have lost credibility in the eyes of citizens for their inability to involve citizens in democratic decision-making and in the delivery of public services at the decentralised level. At the same time there is growing recognition of the potential of local government areas in Australia to fill this void in democratic participation. There is now general, if belated, acceptance that Australian federalism is much more than the Federal versus State binary suggests.
Local governments are a creation of the States, which places constraints not only on local government autonomy, but also on the ability of the Commonwealth to fund them. Between 1989 and 1999, the Local Government Acts in each State jurisdiction were reviewed and either wholly or largely rewritten.[31] Section 3F of the Local Government Act 1989 (Vic) is typical of the position across Australia in that it widens the scope of local government activity by giving councils ‘the power to do all things necessary or convenient to be done in connection with the achievement of its objectives and the performance of its functions.’ From a singular focus on physical infrastructure a generation ago, reflected in the slogan ‘roads, rates and rubbish’, local governments are now actively involved in local capacity building projects, and are fully engaged in the provision of a range of community and human services.[32] Notwithstanding the modernisation of local government legislation and functions, there has been no change in the power relations between the States and local governments. Local government remains a creature of state and territory governments,[33] a reality amply illustrated by state constitutional provision.
The status of local government is recognised in the Victorian Constitution in Part IIA of the Constitution Act 1975 (Vic). Section 74A of the Victorian Constitution states that:
Local government is a distinct and essential tier of government consisting of democratically elected Councils having the functions and powers that the Parliament considers are necessary to ensure the peace, order and good government of each municipal district. (Emphasis added.)
Pursuant to sub-s 74B(1), Parliament has wide powers to legislate in respect of the constitution of councils, the way they function, the manner in which council elections are conducted, and the qualification and disqualification of councillors, among other things. Sub-section 74B(2) provides that a council can be dismissed by an Act of Parliament relating to the council, while sub-s 74B(3) governs the suspension and re-instatement of councils as well as the election of a council where council has been dismissed.
These provisions demonstrate that local governments remain firmly within the grip of State institutions. Councils have been dismissed and amalgamated in contentious circumstances on various occasions. As recently as 2007 in Queensland the number of councils was dramatically reduced from 157 to 73, mirroring similar upheaval during the Kennett era in Victoria when local councils were reduced from 210 to 78.[34] However, even if the continued existence and operation of local governments are at the pleasure of the States, it has been observed that this ‘does not mean that local authorities are merely bodies which carry out the wishes and policies of State governments.’[35] Local governments retain autonomy in respect of the policy areas they are permitted to undertake, and in this sense they are ‘responsible to their electorates not to State governments.’[36]
The question is often asked: what would federal constitutional recognition of local government in Australia achieve? The most obvious answer, from the perspective of local government, is that such recognition would confer some constitutional protection against dismissal of councils by States. Furthermore, recognition could secure the financial independence of local governments by entrenching their entitlement to Commonwealth funding. This objective has acquired greater significance in the light of the High Court’s decision in Pape v Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1, the effect of which – as far as this discussion is concerned – is to reprioritise the need for constitutional amendment.[37] Finally, the symbolic value of recognition should not be underestimated as this would alter popular perceptions of the legitimacy of local governance, drive further capacity-building and strengthen local democracy.
An Experts’ Forum was convened in Canberra on 21 and 22 August 2008 to consider the most effective ways of ensuring an eventual positive referendum outcome on federal constitutional recognition from the viewpoint of local government. The Forum considered four factors as crucial to securing an amendment of the Australian Constitution to give recognition to local government – bipartisanship, adequate popular education, popular ownership of the proposal and the need for a sound and sensible proposed amendment.[38] The Constitutional Convention held in December 2008 concluded that a referendum to include local government in the federal Constitution would be the best way of ensuring the future stability of local government in Australia. On 1 and 7 September 2010, the Australian Labor Party (ALP) entered into agreements with the Australian Greens and independent MPs respectively which enabled the ALP to form government. One of the stated commitments of the September agreements was to work towards holding a referendum on constitutional recognition of local government on or before the 2013 election.
Given the conservative nature of the Australian electorate and previous referendum failures on the topic, a positive referendum outcome on recognition cannot be assured despite a perceived receptiveness to the need for reform. Advocates of constitutional recognition acknowledge that a successful campaign must start with an appropriate education program to explain to Australians why constitutional recognition is important at this time and to build consensus. Certainly, proponents of constitutional recognition would have less to do to convince the public of the merits of constitutional recognition if regionalism or localism had a popular basis and strong resonance within political culture. To the extent that civic participation and local identity are conducive to the strengthening of local government,[39] enhanced participation in local government activity can build community and promote a culture of local decision making and identity that perpetuates further development. However, the commitment to hold a referendum during the 43rd Parliament means that time is of the essence. The changes thought to be brought about by citizen participation are not a ‘quick fix’. Developments will play out in the fullness of time and will be conditioned by citizen attitudes to, and understandings of, their role in local government. To that end, a better understanding of the theoretical underpinnings of local and participatory governance is desirable.
Despite sometimes acrimonious relations and clear power imbalances between State and local governments, scholars have begun to note the emergence of ‘the language of partnership’ between these levels and non-governmental actors, ‘as participatory governance and community building become the new strategic focus of some state governments.’[40]
Participatory governance involves the active participation or involvement of communities in the formulation of policy beyond traditional notions of access to information and consultation. The focus of participatory governance is ostensibly on partnerships and collaborations among stakeholders to achieve community objectives; ‘structures and arrangements which support effective relationships across the public, private and community sectors as they collaborate in decision-making.’[41] Aulich states that ‘this emerging form of community engagement seeks a more active relationship between government and citizens by enabling citizens to play a significant and more direct role in shaping the nature and priorities of their communities.’[42]
These developments signify a shift from the ideal of local government to local governance in Australia,[43] which admits the role of non-governmental actors in dealing with a range of social and economic problems once thought to be within the exclusive domain and responsibility of government.[44] Often expressed in terms of horizontal linkages, new and complex forms of public-private interactions are characterising contemporary governance arrangements, signalling a greater role for civil society and business in policy making.[45] A new set of actors have become involved in the governing process. They are drawn from the private sector, civil society and technocratic elites.[46] Though the shift towards local governance and local partnerships has given impetus to the need for greater community participation in policy-making processes,[47] the extent to which local partnerships actually increase local capacities to resolve social and economic problems has been judged ambiguous.[48] Scholars have commented that many claims about the benefits of increasing civic participation have been overblown[49] while the practice of partnership has foreclosed debate and action on alternative more comprehensive or ‘solidaristic’ possibilities.[50] Scholars have also suggested that partnerships and collaboration with non-government actors in the provision of services can lead to role ambiguity, blurred boundaries and unnecessary complexity.[51]
Aulich opines that the institutional weakness of local government in Australia renders it even more difficult for local partnerships to create structural change and advance participatory governance. Questions abound. Can local governments act effectively to engage local citizens in local governance, to promote and develop participatory governance, in light of constraints on their autonomy and resources? Will State governments respond to the challenge to loosen their grip on local government in the interest of facilitating the development of equal partnerships and participatory governance? If participatory governance can actually develop towards more direct community involvement in decision making processes, with a commensurate devolution of power and resources from the centre towards local communities, will this new social ontology – a ‘new localism’[52] – obviate the need for constitutional recognition of local government? Further research is required to evaluate State and local government policy interventions in this field[53] and to model proposals for the further development of participatory governance. Indeed, the theory of participatory governance itself makes claims – often taken as self-evident – that citizen involvement in governance improves democracy and provides benefits for citizens. Reasonable as these claims may seem, there is still a need for a larger program of research to evaluate how greater democracy is to be achieved, though it is not the purpose of this paper to undertake such a task.[54] It has been noted that ‘[h]ow we understand “governance” depends ... on the theories within which we do so.’[55] Recent work in Australia has proposed that ‘[t]here is good reason to believe that stronger regional governance within the federal system will deliver long-term social, economic and environmental benefits.’[56] Brown states that participation ought to be pursued at all levels of program design and delivery, rather than simply through political and electoral processes. Noting the benefits of participation, he observes:
While commonly framed around notions of social capital, improved participation is also noted for its economic benefits Under this principle, reforms can be assessed for their contribution to the revitalisation of relationships between communities and government, through enduring engagement mechanisms in which formal structures better align with major communities of interest. Localised governments are better placed to develop networks and involve community and local business in seeking solutions to issues confronting that community.[57]
The aspiration towards community engagement and community-focused public policy of course also finds expression in the principles and values – some would say rhetoric – of EU policy makers, focused as they are on notions of subsidiarity, inclusive local governance, local partnerships and community participation. These values, in so far as they express the contemporary ideal of regionalism, are not strictly confined to the EU. The process of regionalisation in Europe was also promoted by the adoption, in 1985, by the Council of Europe (an organisation outside the framework of the EU) of the European Charter of Local Self-Government. This charter committed the parties to adopting and applying basic rules that guaranteed the political, administrative and financial independence of local authorities. The charter also required that the principle of self-government be recognised in domestic legislation and constitutions where practicable. However, national constitutional provisions still differ considerably within Europe as to the competences and capacities attributable to local government. This is unsurprising given the range of constitutional systems in Europe from federal to regionalised to unitary, and everything in between.
While the capacity of the local level of authority to deliver public goods may be constrained in Australia and the EU by national constitutional provisions (or the lack thereof), this level of authority is often charged with administering national or state policies in a manner which best secures local needs. The involvement of local authorities in the formulation of locally relevant policies and development proposals in the interests of the communities they serve ensures that the local level is never seen as too remote from citizens’ needs. Having a strong connection to the democratic values of ‘participation’, ‘accountability’ and ‘locality’, decision making that is ‘close to the citizen’ is in keeping with the emergence of a global norm of ‘democratic entitlement’.[58] As such, local governance or, specifically, the dynamics between the local level and the centre, holds significant interest and potential for those concerned with the recasting of democracy, and with theorising about democratic governance, in a federal or quasi-federal state or entity. Therefore, the observation that regionalism, micro-regionalism[59] and local governance all figure prominently in the EU governance discourse requires little introduction or explanation.
The participatory theory of representative democracy holds, as a core value, accountability through large-scale public participation in political decision-making. The European Commission has committed to strengthening the direct mechanisms of participatory democracy in the EU as a means to enhancing the EU’s political legitimacy. In its 2001 White Paper on Governance, the Commission identified the emerging norms of governance, derived from a liberal conception of democracy and democratic accountability. These were: openness, participation, accountability, effectiveness and coherence. They were established as markers of legitimate action and the means by which civic participation in EU decision making processes and representative structures could be stimulated. Articles 1-46 and 47 of the abandoned Constitutional Treaty (now subsumed within Title II – Provisions on Democratic Principles – of the Treaty on European Union (TEU)) were intended to effectuate such participation. With its emphasis on open decision-taking ‘as close as possible to the citizens’, the formation of a ‘European political awareness’, the ‘will of the citizens’, ‘accountability’ and ‘transparency’, Title II of the TEU clearly adopts the language of a participatory model of representative democracy. In brief, the provisions of Title II seek to open the lines of communication and accountability and to encourage citizens to better engage with EU political processes. However, citizens have not really embraced the few opportunities available to them to participate in EU governance.
Like Australia, the EU is obliged to contemplate federal reform (though the EU is not a fully-fledged federation) to correct the under-capacity of local and regional governance within its multi-level governance system. It has been said that maximising opportunities for individuals to participate in political decisions at local level would enable the development of the ‘necessary qualities and skills to enable them to assess the activities of representatives and hold them accountable’.[60] It has been noted that participation in local governance strengthens democratic values such as transparency and accountability while also fostering integration. In her discussion of the ‘educative effect’ of participation, Pateman alludes to its ‘integrative function’, commenting that ‘participation aids the acceptance of decisions’.[61]
Local government and the workplace represent prime sites of activity for participatory democracy in the EU. The Economic and Social Committee and the Committee of the Regions, being composed of employer and employee groups and sub-national units of government respectively, can potentially guide citizen participation in the development of initiatives and programs that impact positively on local organisation and social justice, with democracy enhancing effects. However, this promise has not been fulfilled as opportunities for participation in the ESC and CoR are restricted and the Committees exercise a predominantly consultative function. Barely a year after the establishment of the CoR in 1994,[62] scholars were already writing about the ‘danger of regional disappointment’.[63] Critics pointed to three main institutional limitations of the CoR: the restriction of CoR competencies to advisory powers; the appointment of members rather than their election; and to internal divisions attributed to its composition of both local and regional representatives.[64] In relation to the latter point, the composition of national delegations within the CoR does indeed vary considerably. Delegations from federal or fully regionalised States are predominantly regional while in non-regionalised States representatives come from local authorities,[65] a set up that has at times resulted in internal friction. Keating remarked in 1998 that ‘the juxtaposition of strong regions with mere local governments in the Committee of the Regions’ was causing problems.[66] Sounding a general note of dissatisfaction, Albert Bore, former President of the CoR (2002-2004) observed:
Local and Regional issues are crucial if important discussions about the future of the Union are to connect to ordinary citizens. We should become the effective voice of local and regional government within European Affairs, playing a complementary role to that of the EP [European Parliament]. We face a major task: after two terms and despite a number of useful initiatives, the reality is that the overall impact of the Committee in the general scheme of European affairs still falls short of what it should be. We have got to do better: we have got to make a difference.[67]
With well-thought out reforms to strengthen local and regional governance at the EU level following a constructive debate on the merits of such reforms in promoting political legitimacy, local and regional democracy could potentially flourish. The limited constitutional power and functions of the CoR are likely to grow in the future.[68]
Indeed there have been many calls for institutional reform to strengthen the role of the CoR in supranational decision-making, but little has so far come of them. This institutional failing has not, however, signalled the stagnation of the local level of authority in the EU governance system. Instead, much of the political power of the regions is being channelled through non-institutionalised or informal networks, and European Liaison Offices representing regional and local authorities. Regions are clamouring to secure independent representation in Brussels to improve information flow from and to EU decision making authorities. Indeed, the number of regional information offices in Brussels has doubled in size from 140 in 1995 to over 280 in 2008,[69] providing anecdotal evidence that their objects and strategic purposes are being achieved. For how else could their rapidly increasing number be explained? It has been suggested that some sub-national authorities seek to establish regional information offices ‘to outwit their central governments’;[70] to ‘prevent their domestic political position being outflanked by national executives operating beyond their reach in Europe.’[71] These offices are said to express paradiplomacy – a real and symbolic presence outside the boundaries of their national state.[72] In a similar vein D’Atena notes that ‘[t]hey are becoming increasingly respected as interlocutors of the bodies of the EU, for evaluating the impact at regional and local level of draft policies.’[73] Olsson also opines that regions of all kinds will continue to seek to influence EU decision making in whatever way they can ‘whether or not they are granted any greater political influence through direct incorporation in the EU decision-making process in the near future’.[74] Indeed regions and local authorities have established networks to lobby the EU,[75] a task they have embraced with real purpose and enthusiasm.
Arguably, the dynamism and strength of such representations derive from their flexibility and pragmatism. EU analysts have offered persuasive explanations for the surge of regional mobilisations. The Europeanisation of domestic structures through regional development plans and policies (including Structural Funds policy[76]) has created pressures on regional and local authorities to seek engagement, representation and participation in the decision making structures and processes that shape their interests. Benz and Eberlein assert that the ascent of the regions as ‘new actors in European policy-making’ and the consequential pressures for regional participation were responsible for ‘novel elements of interlacing and interlocking politics’. Simultaneously, the ‘interaction of Europeanization and regionalization’ triggered processes of regional adjustment and differentiation of intergovernmental decision making structures.[77]
The propulsion of the region into the European political space has not necessarily improved the policy-making capacity of regional governments in general, under the theoretical framework of multi-level governance. Research would support the finding that the EU has a differential impact on each region and may, in fact, reinforce regional economic differences.[78] This differential impact is accentuated by divergent capacities and interests and lack of similarity between regional structures among the Member States and even within Member States. In Spain, for instance, some regions are more autonomous than others (eg Cataluña, País Vasco). In Italy – a regionalised unitary state[79] now engaged in a protracted process of federalisation[80] – five regions have a special, ‘autonomous’ status (ie Valle D’Aosta, Trentino-Alto Adige/Südtirol, Friuli-Venezia Giulia, Sardegna and Sicilia) which distinguishes them in important respects from the ordinary regions. In Germany and Belgium, sub-national units have a broad range of competences within their respective federal systems,[81] their strong position at home matched by their muscle at EU level.[82] Across the EU, politically autonomous regions or regions with a strong regional or local identity are ‘driven to Brussels to secure independent representation’,[83] thereby intensifying the role of territorial factors in politics.[84] Such regions are significantly advantaged in comparison with less distinctive regions. Thus, identity and other symbolic resources have recently been discovered (in economic and management literature) to constitute important economic resources,[85] which may hold relevance in the territorial context.[86] Perhaps in response to the advantages gained by subnational representations in Brussels, regional and local authorities increasingly display support for the EU and European integration at the elite level.[87]
Therefore, numerous representations of EU regional and local authorities are now based in Brussels,[88] and, notwithstanding an absence of official status, they increasingly wield policy influence in the EU. This informal network of regions, together with institutionalised representation of sub-national units of organisation in the CoR, exemplifies the contemporary multi-dimensional operation of the regions within EU supranational decision-making. That such representation of regional interests in the EU is commonly analysed within the analytical frame of lobbying reflects the absence of formal, direct representation within EU institutional structures and the consequential need for these regions and local authorities to influence EU policy in informal ways.[89] Moreover, the process of representation of regional interests is strongly dynamic and opportunistic. For instance, the emergence of cross-border regional cooperation (exemplified by the EU Liaison Office of the Euroregion Tirol-Südtirol/Alto Adige-Trentino[90]) is a response both to widening and deepening EU integration, which has provided new opportunities for information sharing and trans-national participation in multi-level governance.
The deepening of EU integration and the formal introduction of the devolutionary concept of subsidiarity by the TEU have given impetus to the movement towards federalism or decentralisation in certain unitary European States, including Italy and the United Kingdom.[91] The process of European integration has effectively seen the transfer of national powers to Brussels on the one hand and their devolution to the regions and local communities on the other. Magone notes that ‘all member states are pursuing decentralization, deconcentration, or devolution of the administration of their territories in view of democratizing the decision-making process and making policy implementation more efficient.’[92]
The EU’s multi-level governance system has expanded the capacity for co-operation between regions and micro-regions across national boundaries. This phenomenon is demonstrated by the forms of co-operation entered into between adjacent regions in pursuit of environmental and other imperatives. Borders are losing some of the meaning traditionally ascribed to them, facilitating cross-border and inter-regional cooperation on matters of local or common concern[93] and prompting a change in long-established conceptions of ‘territory’ and ‘territoriality’. Again, it is likely that autonomous regions or regions with distinct and strong identities will be at the forefront of this development.
This contemporary governance dynamic is often attributed to the EU, but it also makes sense to observers of Australian federalism which has long encouraged intergovernmental co-operation. Though it is unexceptional that political organisation should demonstrate common features across societies and cultures, the power to build on theory through comparative analysis, which then permeates public discourses everywhere is testament to a rapidly globalising world. The focus on new governance arrangements in Australia – involving partnerships between government, citizens, businesses and NGOs in policy formulation and implementation – has the potential to transform local government in Australia, as in Europe. However, this outcome may be more conditional upon appropriate resourcing and institutionalisation. Lobbying tends to be most intense when money and/or power are at stake, as has been the case in Brussels. Canberra has to date not opened its purse to local government. Nor is Australian federalism quite as dynamic or fluid as its EU counterpart, which suggests a greater need for institutionalisation to achieve anything like the degree of local participation evident in that system.
Whether opportunities for new modes of governance present themselves because of, or in spite of, formal institutional shortcomings is a matter that merits further attention. Weiler once expressed the view that formalising the EU’s constitutional arrangements would produce a ‘familiar and boring desert’,[94] diminishing the EU’s capacity to respond creatively to new governance challenges. The successful operation of European governance is said to be largely dependent upon informal rules, shared values and soft resources such as social capital.[95] In this context, linkages are ideally horizontal rather than vertical while reliance is placed on flexible forms of coordination and co-operation.[96] While flexibility is an important factor in determining innovative solutions to problems, it operates best when there is a firm foundation for decision-making. Flexibility is not a value that can always be invoked to produce innovative solutions where the theoretical underpinnings of cooperative decision-making are shaky or where the shortcomings of institutions, resourcing, and governance arrangements generally, are such as to preclude the development or implementation of practical solutions. Australian federal governance and fiscal arrangements – predominantly imbalanced, vertical and ad hoc – are in need of further institutionalisation to correct imbalances and give a firm foundation to intergovernmental cooperation. By equalising power relations and enhancing the leverage of regional and local governments vis-à-vis the States and the Commonwealth, the benefits of cooperative federalism will be better realised. The theoretical framework of Australian governance must be further debated and examined to determine what changes are feasible and how best to achieve them. The Australian government has, to an extent, pre-empted this debate by agreeing to a referendum on recognition in the near future. But in doing so, there is now an urgent need to explain why recognition is important lest there be yet another referendum failure.
Given the structural weakness of local governments and the slow pace of institutional change in Australia, the question presents itself whether local government in Australia can learn from European experience. This has seen the sub-national level of governance engage in EU governance despite institutional deficiencies. The following discussion seeks to bring synthesis to the disparate threads of this debate.
Despite intermittent calls for institutional reform to strengthen the role of the CoR in EU decision making, this has not come to fruition. Currently, much of the political power of the regions is being channelled through informal networks and European Liaison Offices representing regional and local authorities. These effectively lobby EU decision making institutions. The dynamism and strength of such representations derive from their flexibility (they are not constrained by procedural rules) and pragmatism, as well as growing capacity and a political discourse (multi-level governance, democratic participation and regionalism) that has proved empowering.
The constitutional weakness of local government in Australia may currently militate against the enhancement of local-level democracy. While this may itself present an obstacle to effective governance, the problem is aggravated by the fact that local government is so poorly resourced and local representation poorly remunerated. While the European experience demonstrates that regional representation in Brussels seeks to bypass formal institutional deficiencies of EU governance by seeking other avenues of representation, a precondition for effective representation seems to be a high degree of autonomy and strong regional identity. A culture that confidently aims for excellence, self-knowledge and inter-cultural learning through public deliberation has a clear advantage over others. This idea contemplates culture as ‘a way in which a society can examine itself critically, and sustain a debate on its past, present and future.’[97] It is deliberation and public debate that leads to critical self awareness and makes innovation seem possible. Poorly resourced, powerless regional or local bodies would probably find it extremely difficult to establish an effective lobbying presence in Brussels and could therefore succumb to institutional deficiencies that militate against effective representation.
Regional elites have emerged as effective policy-influencing forces in the EU, through the aegis of the CoR and regional information offices, encouraged by the Commission which has sought to promote integration by reducing the influence of non-federal organs.[98] Local government in Australia could similarly expect to be strengthened if the Commonwealth decided to promote the development of local governance to reduce the influence of the States. This seems to be occurring. The support of powerful actors in the Australian federal system can eventually prove decisive in strengthening local government, giving the latter incentive and legitimacy to press their claims. However, at present the States have the means and the capacity to put a brake on the emergence of local governance as an important and legitimate actor in Australian federalism. This state of affairs can be expected to persist only while States gain political mileage from obstructing the growth of local governance or do not suffer a voter backlash for so doing. The development of the imperative of participatory governance and moves towards citizen engagement may suggest that the States’ dominance vis-à-vis the local level is contingent and temporary. Further analysis and empirical research will be required to test this contention.
Change will be effected, at least partly, as a result of external factors. The evolution of the economic and social structures of Australia (as in Europe) is being affected by globalisation[99] which increases pressure on institutions and drives further centralisation to better manage the national economy. The corollary of centralisation is decentralisation as recognition grows that central administrations are incapable of finding solutions to the complex needs of communities. To some, the idea of a national economy has lost its salience, the new focus falling on the regionalised economy of interconnected regions in a global context[100] as well as cities as centres for growth.[101] This paradox is reflected perhaps in the observation that globalisation has ‘brought about conflicting forces of fragmentation and unification affecting economic, social and political interaction.’[102] As networks of local authorities develop and strengthen to meet community demands for more responsive decision-making, the demand and opportunities for community participation will also intensify. As local competences expand and citizen participation becomes entrenched, local capacity will grow, whereupon it will become increasingly difficult for other political actors to ignore demands for appropriate resourcing and formal recognition of the local level of authority.
The emergence of the principle of subsidiarity in the Australian federal political discourse seems to be following a similar trajectory to that in Europe. The principle foreshadows a growth in the role of local government by virtue of its definition. It mandates decisions as close as possible to the citizen, that is, at the lowest possible level. While in Europe subsidiarity was originally promoted by those opposed to the growth of supranational powers, as a way to transfer power back to the national level, the logic of subsidiarity now suggests that the appropriate level of decision-making is the sub-national or local level rather than the state. The subsidiarity debate is developing along this logic in Australia. Thus it is generally well recognised that local government embodies the spirit of subsidiarity.[103] While the European context is radically different from the Australian, the power of political discourse is universal in its capacity to bring about cultural change.
In the context of the EU, there are at least three factors which appear to influence the ability of European regions and local authorities to effectively engage with, and influence EU decision making processes in spite of (or perhaps because of) institutional weaknesses, and, in so doing, fortify themselves. These factors are: a strong regional identity; a degree of autonomy within the national political space; and adequate institutional support, including the preparedness of decision making bodies to accept decision-altering representations from regional and local authorities. Surdej correctly notes the difficulty of making empirical validation of general theoretical claims relating to the importance of institutional factors (viz. supportive institutions) for local development,[104] but nonetheless proceeds to formulate plausible arguments. Thus:
Institutions as rules embodying cultural values and shaping patterns of social interactions can be seen to be either an obstacle to change or the vehicle for change depending upon several auxiliary circumstances.[105]
It is contended that success at community service delivery is more likely where regionalism or localism has a popular basis and strong resonance within popular culture and citizen preferences. While there may be anecdotal evidence to support this claim, it will be necessary to test the proposition against the experience of various regions within Europe and in Australia. A wide-ranging research program to evaluate policy development including options for structural reform of federal systems is called for.
Despite obvious asymmetries between EU and Australian governance, this article suggests that a few tentative and preliminary conclusions regarding Australia’s arrangements are possible. First, the representation of sub-national interests within a federal system such as Australia’s would be best served by appropriate, constitutionally embedded institutions which give local authorities an equal footing with Commonwealth and State counterparts. Governance in Australia is slowly moving towards decentralisation through the conferral of significant policy competence to the local level, but local governments need to secure adequate financial powers and independence from State governments (effectively more autonomy) in order to fulfil their expanding responsibilities. Unsurprisingly, insufficient budgetary revenues act as a constraint to local development.[106] Revenue denial and the insufficiency of funding from State governments provide cogent explanations for the inability of local governments to become further engaged in community building and why leadership in this area has been usurped by the States.[107] The High Court’s decision in Pape highlights the precariousness of the local level of governance. Appropriate resourcing of local governments can turn this situation around. The Commonwealth is of course in the best position to set the agenda and provide the resources necessary to achieve national objectives. This position ought to be reflected in constitutional provision.
Recognising ‘the complexity of local development in terms of multiple levels of governance’,[108] it is apparent that culture[109] and supportive institutions create favourable conditions for local development. The local level is being strengthened by growing competences, capacity and representation. Thus, local government bodies now sit around negotiation tables with other governmental actors like never before and are capacity building to a degree that suggests enhanced influence in national policy making. However, as long as formal constitutional recognition eludes the third tier of government, and fiscal arrangements are at risk, local governments will remain vulnerable to State political intentionality. Constitutional recognition (and thus protection) of this tier of government has in recent times attracted the support of the Commonwealth.[110] This support is partly attributable to the strong advocacy of ALGA for formal recognition. ALGA’s push for recognition appears to have paid off with the securing of the PM’s commitment to holding a referendum on constitutional recognition on or before the 2013 federal election. Nonetheless, it should be emphasised that the Commonwealth has for some time been generally receptive to the local government cause. The establishment of the Australian Council of Local Government (ACLG) by former Prime Minister Rudd is testament to the Commonwealth’s desire to build a stronger relationship between federal and local governments. The Commonwealth is demonstrably receptive to the idea of enhanced local governance – consistent with trends around the world requiring more of the local level of governance to meet citizen expectations for decision making close to the citizens. The discourse surrounding multi-level governance, new modes of governance, subsidiarity and participatory governance continues to condition the federal political environment towards growth and development of the local sphere. The increasing Commonwealth support for the local government level, together with the current preference for mechanisms of co-operative federalism to accommodate sub-national interests will, it is hoped, translate into the constitutional recognition of, and new financial arrangements for, local government. This imperative, if it is to come about in the current political cycle, will depend largely on the ability of the advocates of recognition to mount an effective – viz. a near perfect – referendum campaign to build consensus towards this goal.
* Associate Professor, Victoria Law School, Victoria University, Australia. BA-LLB (Melb), LLM (Monash), PhD (Melb). I worked on an earlier draft of this paper during a fellowship at the University of Trento in late 20[1]0 and early 2011. I would like to thank Associate Professor Jens Woelk for his insights on the development of autonomy in the Trentino/Alto Adige-Südtirol region of Italy, and Dr Stefano Rossi and Dr Gert Guri for their assistance inTrento. I would also like to thank Swinburne University, my employer at the time.
1 The 1974 proposal was passed only in New South Wales and failed overall with a vote of 46.85%. The 1988 proposal failed to receive majority support in any State and achieved an overall vote of 33.61%.
[2] The story of this judicially sanctioned centralisation, often at the expense of the states, is well-trodden ground. The High Court has made the expansion of Commonwealth power possible through its interpretation of various sections of the Constitution, particularly the external affairs power (s 51(xxix)) and the corporations power (s 51(xx)). See for instance: Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168; Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 (‘Tasmanian Dams Case’) and New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1 (‘Work Choices Case’).The expansion of power via ss 51 (xxix) and (xx) respectively reflects the centralising pressures of international relations and economic governance.
[3] See for example: D Dawson, ‘The Constitution – Major Overhaul or Simple Tune-up?’ [1984] MelbULawRw 1; (1984) 14 Melbourne University Law Review 353-367; G Craven, ‘Original Intent and the Australian Constitution – Coming Soon to a Court Near You?’ (1990) 1 Public Law Review 166-185; J Allen and N Aroney, ‘An Uncommon Court: How the High Court of Australia has Undermined Australian Federalism’ [2008] SydLawRw 15; (2008) 30(2) Sydney Law Review 245.
[4] Brown refers to figures sourced for the IMF Government Finance Statistics Yearbook (2002) that ‘demonstrate the impoverished state of Australian local government by comparison with other federal countries’ (eg local government own purpose outlays as a share of total public outlays in the year 2000-01 were 6.4% in Australia compared with 26.2% in the USA and 17.7% in Canada. Of the various federations surveyed only Malaysia had lower local government outlays of 4.5%): A J Brown, ‘Federalism, Regionalism and the Reshaping of Australian Governance’ in Brown and Bellamy, Federalism and Regionalism in Australia (ANU E Press, 2007) 11-32, 17.
[5] B Head, ‘Taking Subsidiarity Seriously: What Role for the States?’ in Brown and Bellamy, Federalism and Regionalism in Australia (ANU E Press, 2007) 155-170, 156. While the problem of cost-shifting was formally dealt with under the Intergovernmental Agreement on Cost-Shifting 2006 (Australian Local Government Association), claims of oppressive fiscal treatment by the States have persisted.
[6] Brown, above n 4, 13-16.
[7] J Holmes and C Sharman, The Australian Federal System (Allen and Unwin, 1977) 86.
[8] See Brown, above n 4, 15.
[9] B Kelty Regional Development: Report of the Taskforce (Canberra: Department of Industry, 1993) cited in Head, above n 5, 159.
[10] A Twomey, ‘Regionalism – A Cure for Federal Ills?’ [2008] UNSWLawJl 28; (2008) 31(2) UNSW Law Journal 467, 468.
[11] Ibid 469.
[12] Every few years there is renewed discussion of whether the Northern Territory should achieve statehood. A Northern Territory Statehood referendum was held in 1998 but statehood was rejected by voters and debate has somewhat faded since then. Most scholars and political observers in Australia believe that the Northern Territory will eventually attain statehood, and in so doing, test the constitutional difficulties that surround the issue. See for example: A Twomey, ‘A Constitution for a New State: Dilemmas for the Northern Territory’ (2007) 18(3) Public Law Review 200; Twomey, above n 10, 485.
[13] Twomey, above n 10, 486-491.
[14] Ibid 490.
[15] Ibid 491.
[16] See for example A J Brown, ‘Subsidiarity or Subterfuge? Resolving the Future of Local Government in the Australian Federal System’ (2002) 61(4) Australian Journal of Public Administration, 24. Over 70% of survey participants indicated a preference for significant federal restructuring.
[17] Head, above n 5, 163. In the EU context Christiansen notes that conflict is recognised as being ‘part of interregional co-operation’ and that it can either ‘produce adaptations of style or procedure’ or lead to ‘disenchantment [at] the difficulty of reaching consensus’: T Christiansen, ‘Second Thoughts on Europe’s “Third Level”: The European Union’s Committee of the Regions’ (1996) 26(1) Publius 93, 115. Conflict may have similar consequences in both systems. How it is managed often determines its value.
[18] Head, above n 5, 163.
[19] P Bell, ‘Constitutional Recognition for Local Government’, Australian Federalism – Rescue or Reform (Tenterfield New South Wales, 23-26 October 2008).
[20] Reshaping Australia’s Federation – A New Contract for Federal-State Relations (Business Council of Australia, 2006) 35 and 39. See also A Twomey and G Withers, Federalist Paper 1 - Australia’s Federal Future: Delivering Growth and Prosperity, A Report for the Council for the Australian Federation (2007) 47.
[21] See for example: M Longo, ‘Co-operative Federalism in Australia and the European Union: Cross-Pollinating the Green Ideal’ [1997] FedLawRw 4; (1997) 25 Federal Law Review 127; M Longo, ‘Subsidiarity and Local Environmental Governance: A Comparative and Reform Perspective’ [1999] UTasLawRw 14; (1999) 18(2) University of Tasmania Law Review 225; A Twomey, ‘Reforming Australia’s Federal System’ [2008] FedLawRw 3; (2008) 36(1) Federal Law Review 57; Brown, above n 16; Head, above n 5.
[22] There is a vast literature on the topic in Europe, commencing from 1992 when the principle was introduced by the Treaty on European Union 1992 (‘TEU’), including: N Emiliou, ‘Subsidiarity: An Effective Barrier Against Enterprises of Ambition’ (1992) 17(5) European Law Review 383; G Bermann, ‘Taking Subsidiarity Seriously: Federalism in the European Community and the United States’ (1994) 94(2) Columbia Law Review 331; R von Borries and M Hauschild, ‘Implementing the Subsidiarity Principle’ (1999) 5 Columbia Journal of European Law 369; G de Búrca, ‘Reappraising Subsidiarity’s Significance after Amsterdam’ (Harvard Jean Monnet Working Paper 7/99, 2000); G Davies, ‘Subsidiarity: The Wrong Idea, in the Wrong Place, at the Wrong Time’ (2006) 43 Common Market Law Review 63; I Cooper, ‘The Watchdogs of Subsidiarity: National Parliaments and the Logic of Arguing in the European Union’ (2006) 44(2) Journal of Common Market Studies 281; J V. Louis, ‘The Lisbon Treaty: The Irish “No”: National Parliaments and the Principle of Subsidiarity – Legal Options and Practical Limits’ (2008) 4(3) European Constitutional Law Review 429; G Bermann, ‘The Lisbon Treaty: The Irish ‘No’: National Parliaments and Subsidiarity – An Outsider’s View’ (2008) 4(3) European Constitutional Law Review 453.
[23] From the earliest days, following its formal introduction by the TEU, the principle of subsidiarity has been recognised for its potential for ‘guaranteeing’ the liberty of the new European citizen while also preventing the ‘over-extension’ of the EU system: See Emiliou, above n 22, 407.
[24] Head, above n 5, 160.
[25] Ibid.
[26] M Longo, ‘Subsidiarity’ in B Galligan and W Roberts (eds) The Oxford Companion to Australian Politics (Oxford University Press, Oxford Reference Online, 2008).
[27] Ibid.
[28] Brown, above n 4, 12.
[29] Ibid.
[30] B Galligan, A Federal Republic: Australia’s Constitutional System of Government (Cambridge University Press, 1995).
[31] C Aulich, ‘From Citizen Participation to Participatory Governance in Australian Local Government’ (2009) 2 Commonwealth Journal of Local Governance 44, 49.
[32] Ibid 53. Decomposition of public expenditure by function demonstrates that the main functions of Australian local governments are transport and communications, housing and community amenities, recreation and culture and general public services: see OECD, Economic Surveys: Australia, Volume 2006/12, July 2006, 76 cited in Reshaping Australia’s Federation – A New Contract for Federal-State Relations (Business Council of Australia, 2006) Appendix 1 (Intergovernmental Relations in Federal Systems) 45.
[33] Aulich, above n 31, 50.
[34] See L Megarrity, ‘Local government and the Commonwealth: An Evolving Relationship’, Research Paper No. 10 (2010-11), (Department of Parliamentary Services, 2011), 5.
[35] R L Matthews (ed), Federalism in Australia and the Federal Republic of Germany (ANU Press, 1980) 246.
[36] Ibid 247.
[37] The Court held that ss 81 and 83 of the Constitution do not confer a spending power upon the Commonwealth Parliament. Pape therefore puts Commonwealth direct funding to local government at risk. See G Williams, ‘Opinion’, Advice Re Pape v Commissioner of Taxation and Direct Federal Funding of Local Government (Sydney, 2009).
[38] Bell, above n 19.
[39] Megarrity, above n 34, 16.
[40] For example, see Aulich, above n 31, 51.
[41] M Edwards, ‘A big shift in decision-making’, The Public Sector Informant, November 2005, 12 cited in Aulich, above n 31, 45.
[42] Aulich, above n 31, 51.
[43] Ibid 52. This shift is occurring in many polities around the world, and is often attributed to the governance turn in the EU: See A Gąsior-Niemiec, ‘Local Government in the Process of Transformation’ in P Blokker and B Dallago (eds), Regional Diversity and Local Development in the New Member States (Palgrave Macmillan, 2009) 228, 230.
[44] M Geddes, ‘International Perspectives and Policy Issues’, in P Smyth, T Reddel and A Jones (eds), Community and Local Governance in Australia (UNSW Press, 2005).
[45] See P Blokker and B Dallago, ‘Introduction: Regional Diversity and Local Development in the New Member States’ in P Blokker and B Dallago (eds), Regional Diversity and Local Development in the New Member States (Palgrave Macmillan, 2009) 1, 5.
[46] B Quinn, ‘Tensions between Governance and the prerequisites of Democracy’ in J Franzke, M Boogers, J Ruano and L Schaap (eds), Tensions Between Local Governance and Local Democracy (Reed Business, 2007), 18.
[47] Aulich, above n 31, 52.
[48] M Geddes, ‘Tackling Social Exclusion in the European Union? The Limits to the New Orthodoxy of Local Partnership’ (2000) 24(4) International Journal of Urban and Regional Research 782, 792-793. Geddes states that ‘[l]ocal partnerships may be more a reflection of the wider weakening of governance capacity in an era of neoliberalism and globalization than of strengthening of local governance’.
[49] J Wiseman, ‘Local Heroes? Learning from Recent Community Strengthening Initiatives in Victoria’ (2006) 65(2) Australian Journal of Public Administration 95, 103-105. Wiseman refers to writing by Scanlon (2004), Brennan and Cass (2002) and Mowbray (2004) who describe the emerging theory and practice of community strengthening and social capital as ‘a woolly rhetorical blanket thrown over the ugly old scars of capitalist business as usual.’ He acknowledges that ‘[m]any of these warnings are justified and salutary’. Local strategies for community building are ‘no substitute’ for progressive state policies on tax, income security, service delivery, labour market outcomes and investment in core infrastructure ‘that provide the real foundation for resilient and healthy communities.’ Nonetheless, ‘community strengthening strategies can create space and tools for building more democratic, less market driven frameworks, institutions and practices for public policy decision making.’
[50] Geddes, above n 48, 797.
[51] Quinn, above n 46, 18.
[52] G Stoker Transforming Local Governance (Houndmills, Basingstoke: Palgrave Macmillan, 2004), cited in Aulich, above n 31, 45.
[53] Aulich, above n 31, 56 and 57.
[54] A valuable program of research could entail situating local governance within wider governance and regulatory theory. A variety of theories focus on issues of local governance, devolution and trends of centralisation and decentralisation. These include ‘democratic experimentalism’ (eg see M C Dorf and C F Sabel, ‘A Constitution of Democratic Experimentalism’ (1998) Columbia Law Review 98(2) 267), ‘neoliberalism’ (eg M Geddes, ‘Neoliberalism and Local Governance – Cross-National Perspectives and Speculations’ (2005) 26(3&4) Policy Studies 359), ‘third way’ governance (A Giddens (1998) The Third Way: The Renewal of Social Democracy (Polity, 1998); A Giddens (2000) The Third Way and Its Critics (Cambridge: Polity, 2000)), ‘empowered participatory governance’ (A Fung and E O Wright ‘Thinking about Empowered Participatory Governance’ in Fung and Wright, Deepening Democracy: Institutional Innovations in Empowered Participatory Governance, The Real Utopias Project IV (Verso, 2003) 3), and ‘new governance’ which has explored the Open Method of Coordination in the EU (eg J Scott and D M Trubek ‘Mind the Gap: Law and New Approaches to Governance in the European Union’ (2002) 8(1) European Law Journal 1; C M Radaelli, ‘The Open Method of Coordination: A New Governance Architecture for the European Union?’ (2003) 2003:1 Swedish Institute for European Policy Studies. Another theory, ‘regionalism’, is discussed throughout this paper. Twomey has called for research that pinpoints how regionalism achieves outcomes such as efficiency and greater democracy. See Twomey (2008), above n 10. Brown has sought to establish a framework for a program of research to evaluate various options for reform of the Australian federal system: see A J Brown, ‘Reform of Australia’s Federal System: Identifying the Benefits’ in Brown and Bellamy, Federalism and Regionalism in Australia (ANU E Press, Discussion Paper, 2007, 1-42), 231.
[55] R A W Rhodes ‘Governance and Public Administration’ in J Pierre (ed) Debating Governance: Authority, Steering, and Democracy (Oxford University Press, 2000) 54, 68.
[56] Brown, above n 54, 36.
[57] Ibid 31.
[58] T Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 American Journal of International Law 46; G H Fox and G Nolte, ‘Intolerant democracies’ in G H Fox and B R Roth (eds), Democratic Governance and International Law (Cambridge University Press, 2000) 389, 390; W Michael Reisman, ‘Sovereignty and Human Rights in Contemporary International Law’ in Fox and Roth (eds) Democratic Governance and International Law (Cambridge University Press, 2000) 239; J Crawford, ‘Democracy and the Body of International Law’ in Fox and Roth (eds) Democratic Governance and International Law (Cambridge University Press, 2000) 91; S Marks, ‘International Law, Democracy, and the End of History’ in G H Fox and B R Roth (eds) Democratic Governance and International Law (Cambridge University Press, 2000) 532; B R Roth, Governmental Illegitimacy in International Law (Oxford University Press, 2000).
[59] Micro-regionalism as a movement is associated with greater autonomy (self-rule) in decision-making; thus more effective protection of distinctive cultural features and greater democracy through enhanced capacity of communities to formulate policy and choose the form of government to represent them: see discussion in M Longo, ‘European Integration: Between “Micro-regionalism” and Globalism’ (2003) 41(3) Journal of Common Market Studies 475, 479.
[60] C Pateman, Participation and Democratic Theory (Cambridge University Press, 1970) 32.
[61] Ibid 33.
[62] Established in 1994 under the TEU, the first plenary session of the CoR was held in Brussels on 9-10 March 1994. CoR members meet in plenary sessions in Brussels five times a year. As of January 2007, the number of members of the CoR was 344 following the accession to the EU of Bulgaria and Romania.
[63] A Olsson, ‘Euroscepticism Revisited – Regional Interest Representation in Brussels and the Link to Citizen Attitudes towards European Integration’(Speech delivered at the 11th Biennial International Conference of the European Union Studies Association, Los Angeles, California, 23-25 April 2009) 4.
[64] Ibid. See also Christiansen, above n 17, 97-99. Christiansen states that ‘[t]rans-European associations of regional and local authorities had already clashed before work began’ in the CoR (at 97).
[65] A D’Atena, EU Committee of the Regions, ‘The European Side, Procedures for local and regional authority participation in European Policy Making in the member states’ Committee of the Regions-Studies E-1/2005 (Luxembourg: European Communities, Office for Official Publications of the European Communities, 2005) 8-41, 22-25.
[66] M Keating, The New Regionalism in Western Europe: Territorial Restructuring and Political Change (Edward Elgar, 1998) 187.
[67] EU Committee of the Regions, What it is? Who Does What? (Luxembourg: Office for Official Publications of the European Communities, 2002-04).
[68] EU Committee of the Regions, ‘Regional and Local Democracy in the European Union’ CoR-Studies E-1/99 (Office for Official Publications of the European Communities, 1999) 1, 10.
[69] EU Committee of the Regions, Associations/Bureaux de Representation Regional et Communale a Bruxelles: Repertoire (Bruselles: Comite des Regions de’l Union Europeenne, 2008).
[70] P John, Local Governance in Western Europe (Sage, 2001) 87.
[71] G Marks and D McAdam, ‘Social Movements and the Changing Structure of Political Opportunity in the European Union’ in G Marks et al, Governance in the European Union (Sage, 1996) 95; EU Committee of the Regions, ‘The Regional and Local Dimensions in Establishing New Forms of Governance in Europe’, CoR-Studies E-7/2002 (Luxembourg: European Communities, Office for Official Publications of the European Communities, 2003) 42, 43.
[72] John, above n 70, 86.
[73] D’Atena, above n 65, 41.
[74] Olsson, above n 63, 5.
[75] Such networks include the network of cities, the Council of European Municipalities and Regions, the Congress of Local and Regional Authorities of Europe, the network of peripheral maritime regions and the Assembly of European Regions among others. See EU Committee of the Regions, ‘The Regional and Local Dimensions in Establishing New Forms of Governance in Europe’, CoR-Studies E-7/2002 (Luxembourg: Office for Official Publications of the European Communities, 2003) 42, 44.
[76] Structural policies seek to remove social-economic and other disparities within and between territories.
[77] A Benz and B Eberlein, ‘Regions in European Governance: The Logic of Multi-Level Interaction’ (EUI Working Papers RSC No. 98/31, European University Institute, 1998) 18. See also, Longo, above n 59, 479-482.
[78] C M Dudek, ‘Can the European Union Influence the Functioning of Regional Governments?’ (EUI Working Papers RSC No. 2000/49, European University Institute, 2000). Dudek asserts that ‘EU regulatory policy has constrained the ability of some regional governments to create and implement development policies most appropriate for their respective region’ at 3. This necessitates further research on the ‘territorial implication of EU regulatory policy upon regional governments’ policymaking ability’: at 28. Keating makes the point that ‘[h]opes that the development of a European political space would create new possibilities for autonomous regional action have been disappointed’: M Keating, ‘Territorial Politics in Europe. A Zero-Sum Game? The New Regionalism. Territorial Competition and Political Restructuring in Western Europe’ (EUI Working Papers RSC No. 98/39, European University Institute, 1998) 16.
[79] The regionalisation of Italy was completed in 1970 with the establishment of the 15 regions with ordinary autonomy. These had been provided for in the 1948 Constitution but had existed on paper only for about 22 years. The five regions with special autonomy were actually in existence by virtue of Article 116 of the Constitution.
[80] Negotiations for the federalisation of Italy (actually a process of fiscal federalism) commenced in the mid 1990s and continue at the time of writing. It is expected that once adopted fiscal federalism will not be fully implemented before 2015 or 2020. Keating has observed that the distinction between federalism and the stronger forms of regionalism is becoming increasingly difficult to draw: Keating, n 66, 113. See also F Palermo and J Woelk, Italy takes the slow boat to federalism, (2007) Forum of Federations, Federations Magazine <http://www.forumfed.org/en/products/magazine/vol7_num1/italy.php> .
[81] Germany and Belgium are federal states in which regions are invested with a high degree of administrative, political and financial autonomy and exert significant influence on the policies of the central government. See G Marks et al, ‘Competencies, Cracks and Conflicts: Regional Mobilization in the European Union’ Table 3.2 in Marks, Scharpf, Schmitter and Streeck (eds), Governance in the European Union (Sage, 1996). Regional Autonomy Index, 51.
[82] Significantly, German Länder not only have the ‘possibility of participating in the working groups of the Council and in Comitology, or of sitting at the table at Council meetings as negotiators or as part of the national delegation, they have also been given positions in the permanent representations’: T Larsson, The Internal Enlargement of the European Union and the Surplus of the Intermediate Level of Government (2000) European Institute of Public Administration <http://eipa.nl/public/public_eipascope/00/2000-2/Larsson.htm> . This is in contradistinction to the regions (even the stronger regions) within unitary states (eg Luxembourg, Portugal, Ireland), which are denied such representation and are thus prevented from realising the full potential of interaction with the EU institutions.
[83] Marks et al, above n 81, 60. With budgetary constraints and a low capacity for resource redistribution, it is unlikely that regions are setting up offices in Brussels in order to attract funding from the EU. Member State executives and the European Commission, to a lesser extent, determine the allocation of funding in the EU: Marks et al, above n 81, 56. Research indicates that ‘the most entrenched subnational governments with the broadest range of competencies’ and regions with ‘a strong sense of separate identity. . . [or those with] a durable party-political orientation that is not represented in the national government’ are more likely to mobilise in Europe either because they ‘have an intense need for information concerning upcoming legislation or regulation’ or ‘because they have political demands which conflict with those of their national governments’: Marks et al, above n 81, 61.
[84] Ibid 63.
[85] A Surdej, ‘Time Horizons and the Institutional Underpinnings of Local Development’ in P Blokker and B Dallago (eds), Regional Diversity and Local Development in the New Member States (Palgrave Macmillan, 2009) 31-42, 35.
[86] Surdej makes some interesting claims regarding the relevance of ‘territorial identity as a brand’ in long-term development goals’: Ibid 41.
[87] Olsson, above n 63, 5.
[88] Brussels has been repeatedly described as ‘a lobbyists’ city’, ‘a paradise for self-interested political lobbying’ or the like. See C. Harlow, ‘Citizen Access to Political Power in the European Union’ (EUI Working Paper RSC No. 99/2, European University Institute, 1999) 35. See also Christiansen, above n 17.
[89] Olsson, above n 63, at 13.
[90] The three regions of Tirol, Südtirol/Alto Adige and Trentino established the first cross-border liaison office in Brussels in 1995. With the accession of Austria to the EU in 1995 cross border cooperation between these EU regions became a practical reality. See Europaregion Tirol- Südtirol/Alto Adige-Trentino <http://www.europaregion.info/en/161.asp>
[91] In addition to Italy and the United Kingdom, other regionalised unitary states in Europe that have seen decisive moves towards devolution in recent years are Spain and France. In Italy and Spain regional authorities exercise legislative powers in some policy areas which are comparable to the powers of regions in federal states. The countries of Denmark, Finland, Netherlands and Sweden can be described as decentralised unitary states with the local level of government enjoying some autonomy, even if they cannot be said to have real legislative autonomy vis-à-vis the central government. See generally, EU Committee of the Regions, ‘Regional and Local Government in the European Union: Responsibilities and Resources’ CoR-Studies E-1/2001 (Office for Official Publications of the European Communities, 2001) 35; EU Committee of the Regions, ‘Regional and Local Powers in Europe’ CoR-Studies E-4/2002 (Luxembourg: Office for Official Publications of the European Communities, 2002) 17.
[92] J M Magone, Regional Institutions and Governance in the European Union (Praeger Publishers, 2003) 9.
[93] Chiti refers to the bonds that already unite the regions of Languedoc-Roussillon and Cataluña, the Rhône-Alps-Côte d’Azur and Valle d’Aosta, Piemonte and Liguria as examples of the irreversible progress that regions have made in this direction in recent years: V Chiti, Italy Between Old and New Federalism (Edizioni della Regione Toscana, 1998) 30.
[94] See J H H Weiler in Joerges, Mény and Weiler (eds), What Kind of Constitution for What Kind of Polity? – Responses to Joschka Fischer (European University Institute, 2000) 238.
[95] See Gąsior-Niemiec, above n 43, 231.
[96] Ibid.
[97] Keating, above n 78, 13.
[98] R Dahl Fitjar, The Rise of Regionalism: Causes of Regional Mobilization in Western Europe (Routledge, 2010) 22.
[99] There are mixed views on the contribution of globalisation to culture. For some it is a positive influence, bringing new opportunities for exchange and intercultural learning, which may be exemplified by the diffusion of the norm of democratic governance around the world. For others, globalisation is perceived as a negative influence in terms of the consequences for culture in that it overwhelms and diminishes, rather than enhances, local cultures.
[100] See T Herrschel and P Newman, Governance of Europe’s City Regions: Planning, Policy and Politics (Routledge, 2002) 31.
[101] L Carmichael, ‘Local Leadership in Multi-Level Governance in Europe’ in H Heinelt, D Sweeting and P Getimis (eds) Legitimacy and Urban Governance: A Cross-National Comparative Study (Routledge, 2006) 209, 209.
[102] Quinn, above n 46, 15.
[103] P Bell, ‘How Local Government Can Save Australia’s Federal System’ in Brown and Bellamy, Federalism and Regionalism in Australia: New Approaches, New Institutions? (ANU E Press, 2007).
[104] Surdej, above n 85, 41.
[105] Ibid 42.
[106] Ibid 31 and 37. While Surdej acknowledges the importance of lack of adequate finance to local development in the short term, a focus on longer term constraints leads to different conclusions, specifically that institutions are the main factor behind modern economic development: Ibid. Even so, it must be said that continuing budgetary constraints can result in continuing underperformance.
[107] J Martin, ‘Government and Community Engagement’ (Paper presented at the Tenth International Research Symposium on Public Management, Glasgow, 10-12 April 2006), cited in Aulich, above n 31, 51.
[108] Blokker and Dallago, above n 45, 3.
[109] Surdej, above n 85, 41.
[110] The Commonwealth passed a Parliamentary Resolution on recognition of local government in the Senate on 6 September 2006 and the House of Representatives on 17 October 2006. See Bell, above n 103. $9.4 million was allocated to the Department of Regional Australia, Regional Development and Local Government in 2011 to implement a range of specific priorities relevant to regional Australia, including the progression of a referendum on constitutional recognition. See S Crean, Budget: Investing in Regional Australia, Budget Statement, (Canberra: Commonwealth of Australia, 2011) <http://www.aph.gov.au/budget/2011-12/content/download/ms_rural_and_regional.pdf> .
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