States’ rights
Democrats Senator Andrew Murray wrote a piece for Crikey arguing that a federal takeover of industrial relations is inevitable. The only option, he says, is for States to give up and demand concessions:
So what cards can the Premiers still play? Like with the Corporations Law they could sign an inter-Governmental agreement to give up their IR powers, and create a unitary system. Perhaps in return for some payment to ease the pain and an agreement to keep the federal system largely intact, with only modest change until after the next federal election.
However, this paragraph provides a clue as to the Premiers’ strongest bargaining chip. Howard will rely on the corporations power to force his IR reforms on the States. He has that power because the States have agreed — but they’ve done so with strings attached.
The referral of power was made by identical legislation passed by every State. The Corporations (Commonwealth Powers) Act 2001 (WA) makes clear that:
Nothing in this Act is intended to enable the making of a law pursuant to the amendment reference with the sole or main underlying purpose or object of regulating industrial relations matters…
This leaves the High Court open as an option to the Premiers, though it would be expensive and risky given that the bench has been stacked against them.
But the legislation also provides a more aggressive option. The States retain the right to withdraw their referral of power. All they have to do is give six months’ notice. Such action could not be taken lightly (the corporations power was referred to the Commonwealth for a reason, and business would be up in arms), but with coast-to-coast Labor Governments, it does give them significant leverage.
Note: This post is based on a cursory reading of the referring legislation. If you think I’m wrong, let me know why in the comments.
Update: I knew I shouldn’t post on things like this while struggling to keep my eyelids open (hence the disclaimer above). Anthony reminds that the Commonwealth’s corporations power under s51(xx) is already quite broad enough to cover IR without the States’ conferral of additional power. But that raises a question: why would the States include the limitation on using the referred power to regulate IR? Was it purely symbolic?
Update: The restriction on IR doesn’t form part of the legislation, and is therefore non-binding. But if the referral was withdrawn, the Commonwealth’s reach would be significantly curtailed — not to mention the disruption it would cause.
Mt Corr, I think you’re confusing the constitutional corporations power (s 51(xx)) with the Corporations Law. The government already relies on the former for a lot of the federal industrial relations regulations, and wants to rely on it for a further raft of ‘reforms’. The Constitution allows the government to make law with respect to ‘trading and financial corporations’, local and foreign, as well as Commownealth authorities, and so allows regulation of things like unfair dismissal and enterprise agreement-making in the absence of interstate industrial disputes etc. As far as I understand, this constitutional power never gave the Commonwealth authority to pass laws regulating the process of incorporation itself. Thus a comprehensive national Corporations Law depended on referral from the States of their powers. This latter arrangement, which you draw attenjtion to, has nothing to do with the government’s capacity to use its constitutional corp[roations power to pass IR legislation.
I can’t correct you on the legislative details of your post however I think it is desirable for the Awards system to become a federal system – but highly undesirable for Howard to be in charge.
As far as I can tell it makes perfect sense, you simplify the system, prevent duplications and so on. If this is done in a fair and equitable matter then I can’t see who looses. That said, I’ve no doubt that Howard et al will lower working conditions and wages if they did get control of this system. Boo to that.
So in my mind it’s up to the states and the Unions (remember them) to fight to ensure some standards are kept. When Howard gets control of the Senate you can forget about minimum wages and workers right. A lot of people are going to get fucked over. However perhaps the states can use this bargaining chip to ensure that a federalised system is fair.
Anthony, I knew I had probably missed something. That will teach me to post on legal issues while struggling to keep my eyelids open!
I’ve updated the post accordingly.