Expediency comes before consistency in Australian politics. For decades the Coalition parties have championed states’ rights and the benefits of devolving power to the states to avoid duplication. For years they have denounced the Federal Labor Government for … as they would say … abusing the foreign affairs power in the Constitution to intrude into areas traditionally the preserve of the states.
Then they get into government. The high-sounding principles are discarded and one of their first laws is to use the foreign-affairs power to override state employment law. The Coalition has said it will use international labour and political covenants that enshrine freedom of association to overturn law proposed by the NSW government to give preference to unionists.
Now, compulsory unionism is an anathema and any law that insists an employer preference to a unionist over anyone else when hiring is discriminatory. However, the Coalition’s use of the foreign affairs-power and its overriding of state law is rank hypocrisy. It is using the end to justify a means which it has condemned in the past. If it had acknowledged that governments should be able to call on all constitutional powers to pursue their political aims, then no-one could quarrel.
The NSW Labor Government is equally hypocritical. Labor has long champion international treaties to improve human rights and has often sought national legislative solutions. NSW Labor’s move to introduce union preference at the state level flies in the face of that.
Moreover, NSW has said it will challenge in the High Court any federal legislation that attempts to override its legislation. This could have interesting consequences. The Labor side will be defending states’ rights against centralism and the “”abuse” of the foreign-affairs power. The conservatives will be defending the right of the central government to use of the foreign affairs power to impose international human-rights standards upon the states. What a topsy-turvy world. Whose “principles” are we to believe.
On this occasion, NSW and Labor will find themselves in a lose-lose position. If their challenge to the federal law is successful … presumably because the newly composed High Court … does not like too wide an application of the foreign affairs power … a lot of Labor inspired environmental and human-rights law may fall with it, including, of course, the unfair dismissal laws. If, on the other hand, the challenge fails, the new federal conservative government can enact freedom-of-association law across the land. That would presumably include employees’ right not to belong to a union, or to belong to a union of their own choice, rather than one imposed by the Industrial Relations Commission under the present rules that insist that only one union represent each class of employee.
The conflict illustrates the ability of both sides to shove earlier principles aside to pursue ends by all means. It also reveals, that the major parties in government have obstacles beyond each other. Both the federal and NSW governments will have major difficulty getting their industrial-relations laws through their respective Upper Houses in the first place.