The Constitutional doubt over dog parks, BMX tracks and wall murals

Hundreds of millions of dollars of election spending from both major parties on BMX tracks, dog parks, wall murals and a “frog bog” in the nation’s most marginal seats could be unconstitutional because it is beyond the federal government’s responsibilities.

Labor and the Coalition insist their spending is constitutionally legal but did not provide any legal advice to prove they’re right. University of Sydney constitutional law professor Anne Twomey told The Sydney Morning Herald and The Age in her view it was clear both sides of politics were making spending promises that were not supported by the Constitution.

Scott Morrison on a visit to the West Australian seat of Pearce, where the government is promising $1.6 million towards a BMX track.Credit: James Brickwood

Over the course of the campaign, candidates from both major parties have made close to 600 separate promises. In most cases, the promises have been made via social media rather than through the campaign headquarters of the major parties.

But the very small grants aimed at projects more associated with local and state government have prompted questions about whether the federal government has the legal right to spend the money.

Twomey said there were no “heads of power” under Section 51 of the Constitution that entitled the federal government to spend in areas that were the preserve of state governments.

Scott Morrison announcing a grant for a whiskey distillery in the marginal seat of Bass.Credit: James Brickwood

Section 51 sets out the federal government’s powers covering areas including foreign affairs, defence, quarantine, the census and statistics, bankruptcy law, postal and telephonic services, banking, copyright and marriage.

But Twomey said the section did not cover dog parks, BMX tracks or bowling greens.

“The people who wrote the Constitution would be horrified to know that money is being spent on bowling greens and dog parks,” she said.

“I think it’s a real problem that the government are proposing to spend money without any legal authorisation. The ALP is doing the same thing. So you’ve got both sides wanting to spend public money on trying to win an election.”

A spokesman for the Coalition said its promises were legal.

“The government often obtains legal advice on the appropriate legal means for establishing specific grants, including advice on their constitutional basis,” he said.

Constitutional law Professor Anne Twomey says the writers of the Constitution would be horrified to know the federal government is funding dog parks and BMX tracks.

“Unlike Labor, the overwhelming majority of grants announced by the government during this election campaign are supported by existing established legislations or regulations.”

A spokesman for the Labor Party also stood by its promises. “Labor will always act in accordance with the law,” he said.

The Coalition has promised three BMX tracks, including a $1.6 million track in the key West Australian marginal of Pearce, two pump tracks worth $75,000 each in Gilmore, a $25,000 grant for a gin distillery in Boothby, $825,000 for six playgrounds in the seat of Robertson and a $320,000 dog park in the Melbourne seat of La Trobe.

Labor candidates have also made many of their own small-scale commitments in a bid to woo voters. They have included an $11,000 wall mural in Pearce, a $20,000 “frog bog” in the seat of Bendigo, $20,000 to upgrade solar panels and jerseys for a football club in Oxley, $75,000 towards the cost of nets for a cricket club in Boothby and $200,000 to upgrade two dog parks in the seat of Macquarie.

Twomey said the biggest challenge to a successful High Court case against government spending was finding a person who was prepared to take formal legal action. They would likely need to be someone directly affected by a proposal, so they would be effectively arguing they did not deserve government expenditure.

She said some questionable spending, such as expenditure on women’s sporting facilities, might be covered by international treaties to which Australia was a signatory. But there were some areas spending was being promised when it was obvious there was no Constitutional power.

The key marginal seats of Bass and Braddon, both in Tasmania, Boothby in South Australia, Gilmore, Macquarie and Eden-Monaro in NSW and Corangamite in Victoria have all attracted large numbers of promises and announcements since the March 29 budget.

Many promises made by both sides have been for major infrastructure projects, over which the federal government does have constitutional responsibility.

The Coalition used the budget to lock in billions of dollars worth of projects, such as the $5.4 billion Hell’s Gate dam in Herbert in Queensland, a $232 million road project in the seat of Lindsay and a $1.2 billion interstate freight hub in the seat of McEwen.

Labor has acted similarly. Its single largest promise has been $2.2 billion to help fund the Victorian government’s suburban rail link. It was announced in the key seat of Chisholm. Other substantial infrastructure projects have included $200 million for a Bruce Highway project in the seat of Dickson and $210 million for a road upgrade in Kennedy.

Signature programs of the parties have been used to target seats. Marginal seats have been favoured by Labor’s community battery program, including two in the seat of Macquarie. The Coalition’s three BMX course projects have all been targeted at marginal seats, two of which are at risk of being won by Labor.

By number, the most targeted electorates have been Flynn in Queensland (with 19 separate announcements made by the Coalition and seven by Labor) and Cowan in WA (18 by Labor and seven by the Coalition).

Bass, held by the Liberal Party’s Bridget Archer on a margin of 0.4 per cent, has been the focus of 14 announcements from the Coalition and 13 from Labor. The Coalition’s promises have been worth more than $739 million while Labor’s amount to $158 million.

Other seats to win the attention of the parties include Braddon (15 from the Coalition, nine from Labor), Gilmore (12 from the Coalition and Labor) and Macquarie (21 from Labor, seven from the Coalition).

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