We are lucky in Australia that our constitutional Achilles heel is not the right to bear arms, as it is in the United States, but industrial relations. At least people do not get killed because of it.
Both Constitutions have resulted in national black spots. In the US, people carry weapons with impunity and shoot each other far more often than in a society which could regulate gun possession. In Australia, we have had a reputation of unreliability and going on strike at the drop of a hat. True, the Accord period ameliorated that reputation but at huge economic cost.
To date, both nations have found it well nigh impossible to overcome these weakspots in their constitutional heritage. But it seems Australia is about to.
The offending clause in the Australian Constitution is that Parliament has power to make laws with respect to: “”Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of one state.”
That may have been fine in 1901; it is nonsense now.
For 95 years, federal governments of several kinds have tried to gain greater power over the national economy, including industrial relations. Technically, they could do nothing about industrial disputes contained within the boundary of one state. So they set up some artifices to ensure that nearly all disputes extended beyond the limits of one state. They did this by passing law allowing for the registration of national unions and for workers anywhere to become members of them. This ensured that any tinpot dispute in a single workplace could easily become a national dispute because it would so often involve workers who were members of national registered unions.
It is ironic that the artifice used to expand federal control over the national economy … the creation of national unions … has now become one of the strongest impediments to that control. Labor had to surrender policy freedom to the demands of the ACTU in the Accord and the Liberals are determined to unwind union power in order to put their economic program in place.
Fifteen years ago the Government would have had great constitutional difficulty. It intends to curb the power of national unions by placing emphasis on agreements between individuals and their employer and on agreements made in individual workplaces between the employees and their employer. The snag here is that the industrial-relations power requires an interstate element. This is lacking when you are dealing with single workplaces or individuals. These arrangements have hitherto been subject to state employment law.
But the constitutional map has changed. The Commonwealth’s powers over corporations and foreign affairs have been considerably widened during Labor’s 13 years. Like muscle power, constitutional gets stronger with exercise. It is ironic that the Liberals can use the very powers strengthened by Labor for Labor’s policy ends to pursue their very different policy. Constitutional power is a twin-edged sword. (Black Africa despots, for example, have had no compunction about using repressive colonial laws.)
The Commonwealth, for example, could require all corporations to be subject to its new industrial-relations regime. That would cover virtually the whole of the workforce where unions have significant influence. The corporations power has been interpreted widely enough to force corporations to do virtually anything. And the Commonwealth could use the foreign-affairs power to require all employment contracts to conform with international agreements to satisfy its promise of minimum conditions.
Admittedly, the Senate would have to co-operate.
But the extent of the Commonwealth’s potential is best illustrated by arch states’ righters Jeff Kennett and Rob Borbidge, of Victoria and Queensland, offering to give their IR power to the Commonwealth. They want something in education and health in return, but really it is an acknowledgement they have nothing to give. With changes in the constitutional map, the Commonwealth can just take it.