When I read through the Workchoices legislation a while ago it was a brain dulling experience. The bill was long, boring and complex. It recently received a one hundred and eleven page amendment [PDF warning] to add to the Workplace Relations Amendment Act, the Workplace Relations Amendment Bill, the Explanatory Memorandum, the Supplementary Explanatory Memorandum and the Second Reading Speech. Human Resources just got job security in the same way accountants do with the complex tax system.

Chris Berg linked to the Institute of Public Affairs submission on red tape [PDF warning]. The submission had some data tables in it which make interesting graphs.

I *'d the 2000's decade as it is obviously not over. The submission contained data for 2000-2004 which I multiplied by 2.5 to get a number that predicts how many pages of legislation will be produced this decade.

Once laws become so complex and numerous their enforcement essentially becomes arbitrary.

The decision of NSW vs Commonwealth of Australia, WA vs Commonwealth etc is on the austlii website. There have been referendums to modify Section 51xx to give the federal government industrial powers but they failed. The High Court decision discounts these failures in their decision.

The Corporations power is Section s51xx;

51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: -

(xx.) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth:

The decisions writes that the referendums to modify s51xx were in 1910, 1912 and 1926. I guess the 1926 one was the Industrial Matters referendum and the 1912 is either the 1913 Corporations or Industrial Matters. The 1911 Trade and Commerce referendum must have been the other one.

The decision contains;

In 1910, 1912 and 1926, proposals were put to referendum for amendment of both par (xx) and par (xxxv) of s 51. The amendments proposed to s 51(xx) would in each case have extended the power by authorising the Parliament to make laws with respect to the "creation, dissolution, regulation, and control" of corporations. The amendment proposed to s 51(xxxv) would have extended the federal Parliament's power, in 1910, to making laws with respect to (among other things) "[l]abour and employment, including ... [t]he wages and conditions of labour and employment in any trade industry or calling"; in 1912, to making laws with respect to "[l]abour, and employment, and unemployment"; and in 1926, by omitting from s 51(xxxv) the words "extending beyond the limits of any one State".

Those referendums look to be good explicit constitutionalism trying to expand centralised power through the constitution rather than statutory means and hoping the High Court agrees. Which is what Workchoices was. The referendums were rejected by the electorate which has been fairly consistent for Australian referendums that try to centralise power.

The decision argues that these referendums cannot be used to determine the constitutionality of the challenges to Workchoices as the questions are not the same;

There are insuperable difficulties in arguing from the failure of a proposal for constitutional amendment to any conclusion about the Constitution's meaning. First, there is a problem of equivalence. The argument must assume that the proposal which was defeated was as confined as is the question that now falls for determination. If the proposal was wider than the immediate question for decision, it is not open to conclude that a majority of those to whom the proposal was put (whether they are described as "the people of Australia", the "sovereign force" or, as in s 128, "the electors qualified to vote for the election of members of the House of Representatives") reached any view about the ambit of the (unamended) constitutional power, or that they reached any view about that part of the proposal that appears to deal with the immediate issue.

None of the proposals relied on in this matter was so confined. And the fact that the early proposals (of 1910 and 1912) were prompted by the decision in Huddart Parker does not confine those proposals to the questions that now fall for decision in the present matters.

I can understand what they mean, and why they would reserve that right, but Lionel Murphy's Doctrine of Constitutional Implication looks for the implied, rather than explicit, meanings in the constitutional , legislative practice and wider society in interpreting these decisions. The constitution is ultimately the people's, despite the Judicature having the end authority to interpret the constitution, so with the doctrine of constitutional implication I find rejecting the referendum results as a bit disingenuous.

The decision also claims that referendum's cannot be interpreted as the people's will toward the constitution;

few referendums have succeeded. It is altogether too simple to treat each of those rejections as the informed choice of electors between clearly identified constitutional alternatives. The truth of the matter is much more complex than that.

For example, party politics is of no little consequence to the outcome of any referendum proposal. And much may turn upon the way in which the proposal is put and considered in the course of public debate about it. Yet it is suggested that failure of the referendum casts light on the meaning of the Constitution.

Did they just call the Australian electorate idiots and a bunch of sheep? The failure of a referendum does cast the popular will and feeling toward the constitutional nature of the referendum; if people want it, it will pass, if they do not, it will fail.

I find this dismissal by the High Court of the popular process for constitutional reform as not possibly having any meaning or bearing on their decision as disingenous, especially when the Doctrine of Constitutional Implication is an entirely artificial one designed to enable High Court activism.

That doctrine has led to increasing centralisation of power in Canberra - non-partisan too I should add - both major parties have benefited from it. The High Court has been as anti-federalist as Parliament has. The decision argues in favour of modern interpretation of what should be explicit language, and that a referendum's rejection of additional explicit language has no bearing on modern interpretation;

Finally, is the rejection of the proposal to be taken as confirming what is and always has been the meaning of the Constitution, or is it said that it works some change of meaning? If it is the former, what exactly is the use that is being made of the failed proposal? If it is the latter, how is that done? The plaintiffs offered no answers to these questions.

I disagree with that. Referendum outcomes are the popular voice on the constitution. If the electorate rejects a constitutional amendment it has set a benchmark that must be met for those powers to become constitutional in the future. It is a conservative approach but a right and just one. For the Commonwealth to adopt those powers in the future, they should only be able to do so by constitutional referendum.

The decision also argues for separation of powers and constitutional authority on the High Court to have the final interpretation;

Constitutional construction is not so simple a process as the argument from failed referendums would have it. If, as is so often the case, a question about the meaning and operation of the Constitution is controversial, it is for this Court to determine the answer that is to be given. Chapter III, particularly s 76(i), indicates that the determination of matters arising under or involving the interpretation of the Constitution is committed to the judicial power of the Commonwealth. The phrase "or involving its [the Constitution's] interpretation" encompasses later curial disputation concerning earlier decisions respecting the Constitution[169].

Such decisions may also be followed by the passage of a proposed law for the alteration of the text of the Constitution pursuant to s 128. But the opening words of s 128, "[t]his Constitution shall not be altered except in the following manner ...", must be read with those of Ch III to which reference is made above. The constitutional text must be treated as the one instrument of federal government.

The decision sums up the past referendum's influence on the case as;

The failure of successive referendums to alter s 51(xx) and s 51(xxxv) provides no assistance in the resolution of the present matters.

I have a hard time reconciling that comment when the High Court uses implication as its guiding doctrine. We chose the technology of formalised constitutionalism of which referendums are a hard power component of change; a constitutional rejection is as valid as a passed referendum in defining constitutional law.

Yes, the judicature as the final say on the interpretation of the constitution, but constitutional law does not exist in isolation; and yes, the questions may not be the same, but if the High Court judges are prepared to go into past constitutional decisions to determine the answer, then they must be prepared to take into account what has been rejected too.

A referendum is an explicit rejection or constitutional addition that comes before the High Court in the constitutional hierarchy. It has to, a referendum is the only explicit way to modify the language of the constitution itself as the highest law in the land; Constitution -> Referendum -> High Court ...

Centralisation has been an on-going pursuit by Canberra and it has been aided by the High Court, enough that in the 1920s this decision would have had to go to referendum and in 2006 it can be pushed through statutorily.

There is no political or judicial will to stop this centralisation. At the last federal election the Democrats and Greens had formal policies to abolish the states. The Labor have it as an informal policy and John Howard had been quoted in the media with the comment that if Australia was done all over again, there would be no states.

Federalism is badly out of vogue.

cam [IANAL]

The December 1st Senate Hansard is almost entirely consumed by the Independent Contractors Workplace Amendment. Andrew Murray has an interesting statement on the determination of what constitutes an independent contractor.

Unfortunately it is a hard debate to follow and requires a knowledge and understanding of the history of Workchoices related legislation - one of the reasons why we elect specialist legislators - though the flipside is that the people who are required to follow the law should be able to do so easily and without excess specialist knowledge of the law. ie it should be easy to read and understand.

During his speech Andrew Murray is recorded as saying;

These items related to the definition of employee, which I will be moving later in the Workplace Relations Act amendment. I think I need to put these in context now, because obviously if they relate to provisions that are going to go into another act you need to put them in their context.

The bill claims that one of its objectives is to recognise independent contracting as a legitimate form of work arrangement that is primarily commercial; but in fact the bill offers no solution and no further enlightenment as to who is a genuine contractor or employee or who is a disguised contractor or employee.

As the chamber knows, various state legislatures have attempted to grapple with this but at the federal level the common-law provisions continue to prevail. Indeed, the bill only includes a very minimal definition of an independent contractor.

Instead it defers to the common-law definition, which in any case is subject to change over time as jurisprudence advances. Many, including the Democrats, believe relying on the common-law definition of employment is fraught with the problems.

Murray is arguing for explicit legislation that is definitive rather than the common law style of implicitability which remains a non-concrete entity until it is forced into definition by a High Court case. By the sounds of it the States have created explicit definitions in their now obsolete industrial relations legislation.

As noted in my minority report to this bill, the common-law definition of an independent contractor is not a definition as such; it is a set of principles established through jurisprudence and it is not about defining who is an independent contractor but defining who is not an employee.

The common-law approach relies on a test which involves the consideration of a number of court established factors or indicia. This means effectively a case-by-case approach, which is an unsatisfactory way to proceed with employee-contractor definitional disputes that may affect many hundreds of thousands of Australians.

I think it is important to recognise that this particular issue is at the heart of a genuine policy contest between the government and people of my persuasion.

Both the government and the Democrats agree that there should be a national regime which establishes the nature of independent contracting. The difference between us really comes down, at its heart, to the issue of the definition of an employee.

The government has, as a policy matter, adopted the common-law approach. We think--and we agree with the states, because they have tried to address this fundamental issue as well--that you do need a definition of employment.

The government, in another field, of course, has attempted to address this issue in a different way in tax law, through the alienation of personal service income test, which does seek to provide specific indicia of what constitutes an employee.

The Democrats are a national party who are comfortable with the ongoing centralisation of power to Canberra. That has been obvious over the years. Not surprising as they formed in a period when Australia was becoming comfortable with Australian nationalism and Australia as an independent nation-state.

I don't agree with that approach however. I think increasing decentralisation is a virtue under globalisation, as well as the security and stability challenges in the modern world. Federalism is a good technology, but only as much as the system is capable of restricting centralised control.

Murray's point that when disputes arise under this legislation, that common-law form that is permanently being moulded by Judicial decisions is inefficient and time-consuming. If the government is creating legislation to recognize independent contracting then it should be an explicit category. I side with Andrew Murray on this despite my opposition to Canberra having unitary control of industrial relations.

cam

One of the areas where conservatism suffers internal conflict is in collectivism. Because conservatism cannot describe human progress with breaking its own internal logic it turns to economic liberalism while trying to maintain conservative collectivism in culture, society, politics and nationalism. Consequently it breaks the liberty of collectivism in the economy but tries to promote or enforce it everywhere else.

Republicanism accepts collectivism as a liberty as long as it is not predicated in violence, and not protected by the state through involuntary inclusion. For instance, Unions are fine, as long as they are not compulsory or violent. Same with political parties, they are fine, again as long as inclusion is not compulsory or their actions violent. It is the same with other forms of collective organisation such as special interest groups.

James Madison best described this in Federalist No.10. Madison believed that factions, ie political parties and special interest groups, were detrimental to political liberty. However denying them from politics would mean the liberty of political organisation would have to be curtailed; The cure would be worse than the disease.

Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

For this reason, Madison accepts political parties as long as they don't cause or foster violence.

It is the same with Workchoices. As long as the liberty to collective bargain does not cause violence, then there is no liberal or republican reason to ban or prohibit such a process through legislation. It becomes a legislative intrusion on liberty of organisation.

The republican response to collective bargaining is; if a republican must accept that there is liberty for political collectivism in political parties, then a republican must accept that there is the liberty for economic collectivism. This is with the caveats that there is no compulsion for an individual to belong to such a collective organisation and that the organisations are free from violence.

Parties are an inefficiency in the political system. As Adam has said in the past, they exist to 'game' the electoral system. James Carville, the US Democrat strategist stated during the 2004 elections that the purpose of a party is to gain government.

The structure of the representative system is specifically to put distance between the representative and the electorate so that the representative can make unpopular decisions which are in the 'common weal' or public good. There is intended to be a barrier between the representative and the fear of mob tyranny.

The problem with a representative system is that, while it denies the individual direct access, it gives political parties permanent access to government; and instead of mob tyranny, we get party political tyranny. This is what a state of emergency effectively is - executive political tyranny.

A fast path to executive tyranny is party discipline in the executive and legislative. This is a particular problem for parliamentary systems which have poor separation of powers anyway due to the Legislative and Executive being in the same body and the Executive making laws through parliament.

Consequently collectivism is not always the most efficient form of organisation for certain outcomes, including political and economic ones. However, the Australian republican, who favours a liberty first approach, has to accept these inefficiencies - as prohibition of the liberties for individuals to organise in their interests is far worse.

Conservatism lacks this internal consistency of republicanism. Because conservatism actively restricts access to the collective structures it sees as being a positive; such as nationalism, citizenship, family, culture etc; while selectively prohibiting the collectivism it dislikes; such as unions, collective bargaining, and even the rule of law when it suits a political purpose; conservatism becomes internally conflicted and hypocritical on the issue of liberty.

To achieve its political ends and to remain consistent conservatism has to use coercion and despotism. It has no other choice. I am sure they do not want to, but the political ideology and the political goals cannot be achieved without delving into a spate of despotism.

This is why marxism is an illiberal ideology. The Communist Manifesto advocates an initial state of emergency or short period of despotism which was excused during the Stalin era with the saying, 'breaking some eggs to make an omellette";

Of course, in the beginning, this [proletariat revolution] cannot be effected except by means of despotic inroads on the rights of property, and on the conditions of bourgeois production; by means of measures, therefore, which appear economically insufficient and untenable, but which, in the course of the movement, outstrip themselves, necessitate further inroads upon the old social order, and are unavoidable as a means of entirely revolutionizing the mode of production.

This is nothing more than a state of emergency or state of exception. This has been the same method that governments in liberal democracy use to enact their despotic policies. Chavez in Venezuala received the power from the legislature - not the constitution - to make and execute laws for the next six months. This is the process that Marx and Engel advocated in the Communist Manifesto. Chavez's view of socialism is in conflict with economic liberty, and consequently, requires a despotic hand to be brought to fruition and coercion to be maintained.

Anglo nations such as Australia and America are not immune from the state of emergency either. Claiming that the executive can both make and execute laws without oversight for reasons of crisis in national emergency. This excuse for despotism has found sympathetic voices in the mass media.

This is the inconsistency in conservatism and why the area where it does believe human progress stems from - economic liberty - brings its collective beliefs into tension. For instance economic rationalism/liberalism allows companies to market as they see fit to potential consumers. Sex is an extremely effective form or marketing and advertising, but this comes into conflict with conservative family values.

Economic liberalism also values the idea for the sake of it, which can often be a disruptive technology, and radically change the way that collective organisations including the nation, culture and society, interact. Conservativism's reliance on the economy as the only liberal component of its ideology means that the collective and static components of its politics are constantly under threat from progress. The end result of conservatism is a crisis of its ideology and a consequent state of exception to try and reconcile that crisis politically.

Nationalism is another area that conservatism cannot reconcile progress with its ideology. Economic liberalism and the flows of capital, goods and labor mean that the nation-state is unable to handle the political, economic, cultural and social requirements of globalisation. Worse it is often not able to provide the absence of violence in such a system. The big-state nationalist policies of conservatism are another issue as they are introducing inefficiencies into the economic globalisation by interfering with capital and labor flows in the name of nationalism.

Again, economic liberty is bringing conservatism into tension with itself, and forcing conservatism to fall into crisis; of which the easy way out is a Marx/Engel type of despotic emergency; though in the name of collective (national) security rather than marxist materialism.

It is interesting to note that when conservatives recognise the internal inconsistencies of conservatism as a political ideology and the inevitable end result of this philosophy, their 'conservatism' becomes liberal republicanism. Andrew Sullivan is a good example of a conservative who has come to this insight even though he refuses to call it liberal republicanism.

Ultimately this means that conservatism is unable to provide a coherent form of governance in a liberal democracy without dipping into despotism to resolve its lack of internal logic. In liberal democracy we see this as a state of exception. This form of governance is not unique to conservatism, other state-first ideologies such as socialism and nationalism also suffer under this incoherence and must inevitably end in authoritarian emergency.

Ultimately, this form of governance and political ideology is incompatible with liberal democracy and republican government. It must be recognised as such.

cam

The High Court's ratification of Workchoices as constitutional was a bad decision for many reasons. One of the issues raised by Paul Keating was that it allows central control over a minimum wage through legislation alone.

Workchoices gets its legitimacy as legislation through the appeal to employers being from constitutional corporations. From the Workplace Relations Amendment:

"Australian employer" means:

(a) an employer that is a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or

(b) an employer that is a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or ...

The relevant part of the Australian Constitution is Sect 51.xx which read narrowly is:

51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: - ...

(xx.) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth: ...

Which may seem cut and dried, but read broadly with other heads of power in the constitution is not, as industrial relations is mentioned explicitly as well:

(xxxv.) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State:

For this reason national control of industrial relations has gone to three referendums for constitutional amendment to xxxv - all of which have failed.

Originally the corporations power was read very narrowly with a 1909 case, but since the 1970s when the High Court doctrine changed from one of federalism, to the doctrine that the judicial branch has the capability to make the constitution a 'living and breathing document', otherwise known as judicial activism, the corporations power has been one of opening the floodgates.

Because the High Court decision ignores the inter-state requirement of xxxv, and trashes the federal character of the Australian Constitution, making it national - or unitary - then it is open to all manner of centralised industrial management with legislation alone - including minimum wage.

From the Keating interview:

Let me make this clear, the Liberals decided that they wouldn't use the conciliation and arbitration power.

Under that power of the constitution you always needed a commission who tested capacity to pay and comparative wage justice. They've now used the corporations power and the High Court for the first time as validated its use. That means a Federal Government can now legislate the wage and the conditions.

and:

The safety nets now are the National Wage Case and the National Wage Case has gone because the commission has gone. But the Government can have Mr Harper and the Fair Pay Commission, but it's got no commission power it's really the Commonwealth Government. That's the point I'm making. It's not me saying it, it's the High Court saying it.

The nation-state is devoluting into the market-state. Where the nation-state used to be this heavily capitalised intensive centralised structure which would throw money to the poor and slow regions to make them catch up to the achieving regions; the market-state follows the lines of communications and is decentrsalised with innovation happening on the edges and bubbling into the center.

Workchoices is an industrial era approach to industrial relations - and focuses on issues that globalisation have largely made irrelevant. The issue for Australia is that its heavy centralisation of industrial relations is a weakness - a political and structural weakness.

Workchoices and judicial activism in striking it down? Wouldn't that have been judicial conservatism, not activism?

The Federal Government should never have gotten the power over Industrial Relations. It mostly hinged on the definition of 'constitutional corporation' along with the ignoring of the head of power (xxxv) which is an explicit grant of power that limits a broad reading of constitutional corporation.

As the dissenting argument wrote in the decision to give the Federal Government the power of industrial relations it requires a very broad reading of the heads of power in isolation, ignoring the limits the constitution places on federal industrial relations, and the ignoring of several failed referendums to give the federal government this power.

The decision to give the federal government industrial relations was activism that was based on tenuous constitutional grounds. IMO it was a terrible and erronous decision.