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IR power to the feds - will the Australian people still say no?
This piece was originally published on Webdiary in December 2005 as IR power to the feds: the Australian people always say no. The issues that John Miner raised then are even more relevant today.
In 1946, the Chifley Government put four questions to a post-war referendum that envisaged the Commonwealth retaining some of the powers it held temporarily during the war and looked to the future.
One question, on social services, was approved. That constitutional change is the basis of the Pharmaceutical Benefits Scheme, family allowances, the Education Act that involves the Commonwealth in higher education – and Commonwealth responsibility for dental care, which the current government refuses to acknowledge.
Another question in that referendum was whether Australians wanted to give the Commonwealth power over "industrial employment". The nation said No. But that was no big deal. Australia had said no to that idea a number of times before. The Constitution has never given that power to the Commonwealth, and the people have rejected every effort by governments of all persuasions to get it.
How the Howard Government thinks it’s going to realise its industrial relations dream without a further referendum is a mystery to me.
There is sense in the idea. The Constitution insists on free trade between the States, and isn’t labour an integral component of that?
The question was put to the people in 1911 by Andy Fisher’s Labor Government), in 1919 by the Hughes Nationalist Government (not the Hughes Labor Government) and in 1926 by the Coalition Bruce Government. All of these proposals were rejected by the people.
In 1919, the government proposed to extend its wartime powers, with a three-year time limit written in – what we would call a sunset clause. On polling day, 13 December, protectionist Victoria voted for the idea and free-trade NSW against. Conservative South Australia was against, as was Tasmania. The case would have passed if five per cent of the NSW voters swapped sides – which means it wasn’t even close.
There was a second motion, the inevitable wedge: to give the Commonwealth some kind of power to prevent interruption to essential services, which usually means strikes, because how do you prevent interruptions like the Esso Longford gas disaster?
In 1946 the Chifley Government was almost emulating the 1919 referendum process – putting proposals for a post-war Australia arising out of the wartime experience. This time, a majority of voters supported the proposal – but that, under section 128 of our Constitution, is not good enough. NSW and Victoria supported the change, along with WA. The two most populous States were in. But the reason section 128 of the Constitution was written was to ensure that the big states alone can’t dictate constitutional change.
It’s still worth noting that this was the fourth government – of different political stripes - that felt obliged to put the question to the people, despite the low percentage of referendums approved in this country.
The current government proposes to avoid that democratic course, relying instead on its numbers in a Senate that gives Tasmania and NSW equal say.
The Yes case in 1946 had a familiar ring to it:
The people liked it. Just not enough of them. But remarkable in retrospect is the NO case. It should show John Howard, Peter Costello and the narrowly focused Kevin Andrews what they are up against – if they look carefully enough:
That was the anti-Labor position.
But the principal lesson we draw from the steam coming out of Archie Cameron’s ears as he penned the No case is that the constitutional power is feared by both side of politics.
When you amend the Constitution you amend it permanently. What one Parliament can do under the power another Parliament can undo.
That’s right. Just as the conservatives of 1946 saw a Communist plot behind the proposal, so the ALP sees a conservative government wishing to smash trade unions and workers’ conditions and rights. And they are both right.
You’d think people as bright as Kevin Andrews would see it, wouldn’t you?
I doubt that it will come true in the terms above, but it could – and that’s the reason the Australian people have rejected the change on every occasion it has been put.
When Australians think about work and their job, we think in horizons of 30 or 40 years. We won’t stay in a job that long, but we don’t want the entire system lurching from one extreme to the other on each change of government while we pay off the mortgage and raise the family.
Mortgages and families don’t have three or four-year terms. What Australians have said four times already is that, when it comes to workplace relations, we want the real system of checks and balances comprised of State and Commonwealth powers