The WorkChoices decision: national salvation or socialism?


The WorkChoices decision: national salvation or socialism?

What are the consequences of the High Court's ruling that the Federal Government's WorkChoices laws are entirely valid, and that it now has extensive legislative capacity under its corporation powers to take over other areas of State laws?


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What are the consequences of the High Court's ruling that the Federal Government's WorkChoices laws are entirely valid, and that it now has extensive legislative capacity under its corporation powers to take over other areas of State laws?

Does it mean the end of the States? If it does, is this in fact a good thing?

Will Prime Minister John Howard, or a future Labor Prime Minister, be able to resist using sweeping new powers to expand the authority of the Federal Government?

Here are the edited views of some of the nation's leading political, industrial and legal commentators:

Phillip Coorey, Chief Political Correspondent, Sydney Morning Herald

The High Court decision draws a line under what was always a long shot in trying to overturn the industrial relations legislation.

As the Federal Opposition, premiers and unions declared after the decision, the fight is now solely a political one.

Vote Labor at the next election and the laws will be chopped up; vote for the Coalition and they will remain.

Immediately after the Christmas break, Labor should unveil the full details of its industrial relations policy and go hard at selling it. It has already promised to abolish Australian workplace agreements, restore collective bargaining and restore the unfair dismissal process, although in an amended form.

Tim Dick, legal affairs reporter, Sydney Morning Herald

The framers of the constitution intended to create a federation of strong States and a weak central government. Their intention didn't last: 105 years later, the situation is precisely the reverse.

The High Court did much more than simply reject a challenge by all the States and Territories to the Howard Government's industrial revolution. It confirmed a revolution of its own.

It has reread the constitution to expand Commonwealth power at the expense of the States, to the point that one dissenting judge warned each State Parliament could become little but 'an impotent debating society'.

More centralised government

Some fear - while others hope - that the decision clears the way for an even more centralised government.

While increased Federal intervention in education, health and transport may not happen any time soon, according to yesterday's landmark decision, it can. If the Government wished to do so, the States could now do little to stop it.

Howard may be reticent about using the expanded power, but as [High Court judge} Michael Kirby said, 'once a constitutional Rubicon such as this is crossed, there is rarely going back'.

Kenneth Nguyen, legal affairs reporter, The Age

Legal experts have described the High Court's decision to uphold the Federal Government's WorkChoices legislation as an historic - and expected - spear in the side of Australian federalism.

The majority decision, already being spoken of as one of the three most important constitutional cases in High Court history, paves the way for Federal Parliament to use the corporations power to legislate in areas traditionally deemed a State responsibility, such as health and education.

While the Prime Minister and business groups celebrated, many constitutional conservatives described the decision as a 'birthday present' for Kim Beazley should the ALP leader become Prime Minister.

Black day for federalism

'The irony for conservatives is that they may well have created the very weapon that could be used with devastating effect against conservative policy,' said Professor Greg Craven, Executive Director of the John Curtin Institute of Public Policy. He pointed to the possibility of Federal governments taking over planning and uranium mining policies. 'This is a black day for federalism.'

John Stone, a former Treasury Secretary and co-founder of the conservative Samuel Griffiths Society, and John Roskam, Executive Director of the Institute of Public Affairs, support the objectives of the WorkChoices legislation, but deplore the means by which the Howard Government achieved it.

'I heard some employers at lunchtime taking pleasure in this,' Mr Stone said. 'I think they may dance to a different tune when - and I say when, not if - there is a change of government in Canberra and we have a … trade union-influenced government.

'The real backlash will occur when a Labor government in Canberra starts doing a lot of things that they bitterly oppose … It will serve them right.'

George Williams, constitutional lawyer (from The Age)

The High Court has done a lot more than simply validate John Howard's industrial relations revolution: it has given the Federal Government a green light to extend its power in whatever direction it chooses.

As dissenting voice [Justice] Michael Kirby puts it, the system that evolved over more than 100 years has been replaced with a kind of 'opportunistic' federalism, one where no area can be considered the exclusive, or even overwhelming, domain of the States.

The Prime Minister says he has no plans to use the decision to massively extend Commonwealth power, but this is not the point.

The significance of the decision is that we are now operating on a new paradigm, one where the only constraint on the Commonwealth extending its power is the ballot box.

Concentration of power

The truth is that the decision takes the trend of history, towards a concentration of power in the hands of the executive of the National Government, to its logical conclusion - a trend that could not have been fully anticipated when the constitution was drafted.

This is why the 5-2 majority rejecting the challenge was so widely predicted. If there was a surprise, it was that all aspects of the new laws were validated.

The result, when it comes to workplace relations, is that Mr Howard - for as long as he commands the numbers in the Senate - will decide what is fair and what is unfair and be judged when he goes to the people.

Editorial in The Australian

The High Court has done Australia a great service in rejecting pleas by the union movement and State Labor governments to overturn the WorkChoices industrial legislation, thereby confirming the Federal Government's ability to use its corporations powers to override the States.

But in the process it has accelerated the inexorable concentration of political authority with the Commonwealth, striking at the heart of the Australian Federation. Such a centralisation of political authority reflects the deficiencies of State Administrations and the realities of the modern world.

This was highlighted in John Howard's choice of words to welcome the High Court's decision. 'We are a nation before we are a collection of States, whatever may have been the historical sequence,' the Prime Minister said.

The court ruling recognised that Australia was a national economy, and the laws reflected the need for a national industrial relations system. While this may be true, the decision holds much greater significance than that.

Trampled States' rights

It has further trampled the notion of States' rights, continuing a trend established by the landmark Engineers' Case of 1920, the foundation of Australian constitutional law.

The use of Federal corporations power to override the States has split conservative thinkers, as evidenced yesterday by Justice Ian Callinan's dissenting judgment, in which he said it constituted an unacceptable distortion of the Federal balance intended by the founders.

On the other hand, there is little evidence of the fruits that are supposed to derive from the States as 'laboratories of democracy'.

Mike Steketee, National affairs editor, The Australian

One of the most significant decisions in the 103-year history of the High Court marks another milestone in the shift of power from the States to the Commonwealth.

It is a process that has been under way for more than a century. Most recently, the court in 1983 stretched the constitutional fabric to allow the Hawke government to use the external affairs power to stop Tasmania's Franklin Dam.

Now it has delivered an expansive interpretation of the corporations power, effectively allowing it to override the Constitution's industrial relations provisions, by giving its blessing to a further extension of Commonwealth authority.

In practical terms, that makes sense, as companies, trade unions and all manner of other activities increasingly spill over State boundaries.

It shows that, in the hands of the High Court, the Constitution can move with the times, even if the use of its clauses is now wildly different from those intended by the framers of the document.

Trespasses on State functions

But it is more than just a question of keeping up with the times. As dissenting judge Ian Callinan put it: 'To give the (Workplace Relations) Act the valid interpretation claimed by the Commonwealth would be to authorise it to trespass upon essential functions of the States.'

Such trespassing has long been the reality. Though the Liberal Party used to be the great defender of States' rights, the Howard Government has been more insistent than any predecessor in demanding a say in State affairs. What the Commonwealth has done through financial muscle has now been extended by legal sanction.

P.P. McGuinness, columnist, The Australian

(McGuinness is the editor of Quadrant magazine and a former editor of The Australian Financial Review):

The two real conservatives of the High Court showed their true colours [in the WorkChoices judgement]. So did the supposed conservatives, most of them appointed by the Howard Government.

The two were the minority who felt that the structure of Federal Government should not be overthrown, namely Michael Kirby and Ian Callinan. The rest, headed by Chief Justice Murray Gleeson, have conclusively destroyed our Federal system of government.

They did this by in effect abolishing any logical or sensible limitation of the powers of the Commonwealth expressed in our 1901 Constitution, as amended by popular referendums.

The majority decided that subsection xx of section 51 of the Constitution, the corporations power, in practice overrules virtually any other section of the Constitution: in the present case, subsection xxxv, the industrial relations power. They have thrown a century of legislation and litigation, including countless hours of the High Court's time, out the window.

Trashed and forgotten

Although a great deal of this deserves to be trashed and forgotten, it remains that the court has perpetrated a revolutionary act.

Of course this will be treated as a great victory for the Howard Government and a huge defeat for the union movement. And in the short term that is the case. The structure of the conciliation and arbitration system (with its quasi-fascist corporatist ideological underpinnings, informed by late 19th-century Catholic social thinking) has no more than historical relevance. The special privileges of the trade unions under it are finished.

But do not be deceived into thinking that this is a triumph for market forces and for competitive capitalism, or even for economic freedom. It simply substitutes another elaborate system of regulation of economic matters, which in essence is just as statist as that it replaces, but differs only by dramatically diminishing the powers of the States (and partially self-governing Territories).

The greatest modern Australian historian, Geoffrey Blainey, has warned that the pendulum of history and ideology swings back and forth, and that socialism (not to mention its concomitant totalitarianism) will revive at some time in the future.

Brad Norington, industrial relations reporter, The Australian.

Predictably, Labor and unions interpret [the High Court] ruling as a mighty blow to their campaign against Howard's laws because Howard's laws are set in stone.

Workers will have five minimum working conditions; the Australian Industrial Relations Commission will lose its powers to set wages and settle industrial disputes; most workers will lose the right to claim unfair dismissal; and the States' union-friendly IR systems with much more generous award entitlements and powerful industrial tribunals covering up to 50% of the workforce have been put out of business. All that's left for the States is workers employed in unincorporated businesses and the State public sector.

Bob Debus, NSW Attorney General

The States now have to manage an increasingly fraught national political agenda where the reach of Federal Government activity and influence is more powerful and uncertain than ever. We need to rein in this threat and establish a new framework for doing business together to provide services, which in all truth, the Commonwealth has little experience in delivering.

There is an established trend for the Commonwealth to disturb, if not undermine, the longstanding power-sharing arrangements between the States and Canberra. These arrangements have been central to the functioning of the Australian polity since Federation, and their breakdown carries grave consequences.

A central element of this trend is the stripping of revenue-gathering powers from the States. The Commonwealth has more powers to tax, and more access to sources of income, than before. It exercises a stranglehold over revenue, and utilises complex grant-making powers to control funds when passed on to the States.

The WorkChoices decision is part of the disintegration of the Federal-State understanding. Rather than work co-operatively with State governments to craft a unified, secure and clear national system, the Commonwealth increasingly attempts to do so on its own. The High Court decision will do nothing to discourage the Federal Government from insisting on further control of funding conditions or simply supplanting a longstanding State system for one that follows its particular dictates.

Who decides?

The plain political fact is that co-operative federalism now relies on the Prime Minister's promise that further encroachment on States' rights would occur only 'where it is clearly for the benefit of all the Australian people'.

Who decides where there is a benefit? The Prime Minister's undertaking is not a safeguard against further unreasonable intrusions on areas of State responsibility.


‘Historic’ decision redefines Commonwealth-State powers

WorkChoices OK says High Court



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