This piece was originally published on Webdiary in December 2005 as IR power to the feds: the Australian people always say no [0]. The issues that John Miner raised then are even more relevant today.
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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?
In earlier days, when goods travelled by rail, sea and river as well by today’s overwhelming choice, road, there were interminable arguments about the rights of the States to control goods on their railways or in their ports in the face of the free-trade provisions.
Henry Bourne Higgins [1], Peter Costello’s idol, persuaded the first Australian Parliament to agree to the idea of national industrial relations, but the parliament didn’t have the constitutional power to do anything about it. It still doesn’t.
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 the 1911 case, the government asked to extend its powers over corporations, trade and commerce, combinations and monopolies.
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.
In 1926, Stanley Bruce’s approach followed the line of 1911 but anticipated the rhetoric, at least, of the Howard Government. It sought to extend the Commonwealth’s power over corporations to cover trusts and combinations in restraint of trade, trade unions, and employer associations.
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?
On the first question put on 4 September 1926 only NSW and Queensland voted yes, and did so narrowly. The overall national vote was 56.5 per cent against. Even on the wedge question of essential services, an even larger majority - 57.2 per cent – saw through the trick and said No. The big No votes in 1926 were in Labor strongholds.
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.
This time, Labor seats trusted the government and supported the change. But there was a No vote in Queensland, South Australia (of course) and Tasmania. It needed fewer than 2,000 voters in South Australia to change their mind to pass the change, but it wasn’t to be.
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:
With this power the Commonwealth Parliament, either directly or through a body such as the Arbitration Court, could fix the basic wage or decide what principles should be followed in fixing it. It could lay down a standard working week. It would decide on holidays. It could prescribe better factory conditions—for example in lighting, ventilation, rest-rooms and other amenities. It could introduce new and up-to-date methods of smoothing out difficulties between management and workers. For the first time in Australian history, there would be authority to lay down a common rule for a whole industry.
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:
WE BELIEVE THAT THE GOVERNMENT IS TAKING THIS COURSE BECAUSE OF THE STRONG PRESSURE PUT UPON IT BY THE MILITANT ELEMENTS WITHIN THE TRADE UNION MOVEMENT. THE COMMUNISTS ARE OUT TO SMASH OUR ARBITRATION SYSTEM. THEY HAVE MADE NO SECRET OF THEIR OPPOSITION TO IT... WHAT DOES THE PRESENT AMENDMENT MEAN?
Quite shortly, it means that if the Amendment is carried the Commonwealth Parliament will be able itself to make direct laws about wages and hours. The Arbitration Court will be pushed on one side. The Parliament at Canberra will have full authority to decide not only the standard working week but what the working hours are to be in any industry, great or small, and for any class of employees anywhere in Australia.
The Parliament at Canberra will be authorized not only to fix the basic wage but to fix the wages of any group of employees or of any individual employee anywhere in Australia... This brings us to the really crucial question which you have to answer:
DO YOU BELIEVE THAT MATTERS OF SUCH MOMENT, A WRONG DECISION UPON WHICH MAY BE REUINOUS TO THE NATIONAL ECONOMY AND MAY PRECIPITATE EITHER INFLATION OR DEFLATION, BOOM OR DEPRESSION, SHOULD BE DECIDED ON PURELY POLITICAL GROUNDS BY A PARLIAMENT ELECTED TO DEAL WITH POLITICAL MATTERS OR BY COMPETENT AND IMPARTIAL JUDGES WHO WILL HEAR EVIDENCE ON BOTH SIDES, WILL CAREFULLY EXAMINE EXPERT VIEWS AND WILL HEAR THE ARGUMENTS OF ALL THE PARTIES BEFORE ARRIVING AT A DECISION?...
We cannot have a system of industrial justice in which the industrial courts are liable to be overruled at any moment by people at Canberra who know only some of the facts and have for the most part heard none of the arguments.
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?
When the wheel turns, as it inevitably will, AWAs will be abolished and collective bargaining will be back at a stroke of the pen. All the employer associations will be lined up against the wall and made illegal, members facing jail if they continue to open their gobs. Every wage application will be granted without reference to any industrial court. Nobody will be able to work without a union ticket.
It’s Kevin Andrews’ nightmare.
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