With the arrival of the Rudd government’s new workplace relations system, we should recall how this has been implemented under our constitutional system. Unlike the British Parliament, our Federal Parliament is not supreme. It is a Parliament of limited powers.
The intention of the Founding Fathers was that the Federal Parliament’s power to legislate in industrial relations would be limited to making laws about conciliation and arbitration. These would have to be for the prevention and settlement of industrial disputes, but only in relation to those extending beyond the limits of any one State.
How is it then that the Federal Parliament can legislate to the extent it has both under the Howard government and the Rudd government?
…not influenced by the people’s wishes…
The central point is that it is the High Court which interprets the Constitution. And in doing so, the Court will not be influenced by the people’s rejection in referendums of proposals to expand federal power. The majority said this in the Workchoices case.
Since 1920, the High Court has given a decidedly centralist interpretation to the Constitution, without it must be said, giving Canberra an open slather.
Some people, including some constitutional monarchists, will think this is a good thing. In his forthcoming book, Tony Abbott is expected to argue for an increase in federal powers. Indeed it would not be unreasonable to say there a few politicians or judges in office today who would be seen as federalist by the great majority of our Founding Fathers.
That said, it has to be conceded that a minority of our Founding Fathers would greet the present situation with some approval, and that foremost among these would be former High Court justice and later first Australian born Governor-General Sir Isaac Isaacs.
What federalists need is a politician with such strength of conviction that almost alone, he or she can reverse decades of accumulated policy. A federalist Margaret Thatcher, if you will.
But as with Margaret Thatcher’s guiding principles, the electorate is more concerned with results than philosophy. An election will not be won on federalism. Indeed there seems to be a widesread view that if the States fail in some endeavour, the Commonwealth should take over for the benefit of the country. That this is sometimes or even always true should not be assumed.
…Workchoices to Fair Work….
In any event the Howard government’s controversial Workchoices legislation was based more on the power of the federal parliament with respect to corporations, rather than the more limited arbitration and conciliation power.
In the earlier years the High Court once held that the corporations power could not support such legislation, but in recent times the Court has given a wider interpretation to this.
Federalists, including those who supported labour market de-regulation, opposed Workchoices because it relied on the corporations power. If this were upheld as a valid exercise of that power, they argued the Commonwealth could use this in many other areas. Our serious media generally ignored this important issue.
…did the States run dead in Workchoices?….
After the decision was handed down in Workchoices, Julian Leeser astutely concluded that by not challenging earlier High Court decisions, the State Labor governments ran dead, and deliberately so.
(The ALP has always been centralist although in recent years it has accepted the continued existence of the States and the Senate. The conservative parties are less federalist than they once were.)
In a paper to the Samuel Griffith Society in 2007, “Work Choices: Did the States run dead?”
Julian Leeser concluded “The effect of Labor's capitulation is not merely to expand Commonwealth power with relation to the regulation of corporations but, through the methodology endorsed by the majority and insufficiently challenged by the States, a further broad reading of Commonwealth powers may occur in other areas as well.”
“Kevin Rudd and Steve Bracks may talk about reshaping the federation or making it work better, but when Labor had the chance to do so in the High Court it failed to take the opportunity. So when Mike Rann says, ‘[the] High Court decision fundamentally twists the Constitution and further undermines the role and powers of the States even though Australians weren't given a vote through a referendum,’ he and the other State Premiers have only themselves to blame.”
He warned, “Clemenceau famously said: ‘War is too serious a matter to be left to the Generals’. Experience shows that Federalism is too serious a matter to be left to the State Premiers.”
Notwithstanding two powerful dissents in the Workchoices case from Justice Kirby and Justice Callinan, the High Court upheld the validity of the much extended use of the corporations power.
I think Julian Leeser has a point. Had some of the States challenged earlier decisions on the corporations power, it is conceivable that other judges might have joined the two dissenting judges. If two more had joined them, the Workchoices legislation would have been held to be invalid. (It is unusual for a Court to come to a decision on a major point of law without that being argued, the most famous exception to that being the Mabo case.)
Had Workchoices been held invalid, there would have not been such a major union campaign against the Howard government. The election result could even have been different.
In any event the Rudd government has not been backward in relying on the amplified corporations power. In “Cosy IR club returns,” Michael Stutchbury, the economics editor of The Australian (7/7) says that by using the corporations power, the Fair Work legislation “ will enforce a more pervasive federal award system, complete with its micro-management of pay and work rules, as the mandatory default for workplaces across the country.”
If some Liberals and Nationals lament this, there will be federalists who will say they have only themselves to blame.