||Issue No. 259||15 April 2005|
Interview: [email protected]
Unions: State of the Union
Industrial: Fashion Accessories
Legal: Leg Before Picket
Politics: Business Welfare Brats
Health: Cannabis Controversy
Economics: Debt, Deficit, Downturn
History: Politics In The Pubs
Review: Three Bob's Worth
Poetry: Do The Slowly Chokie
The Locker Room
One of the targets of the early days of his government was the High Court, which he accused of being activist for having the temerity to invoke the external affairs power to rule that the blackfellas had been occupants of the continent before Captain Cook sailed over the horizon.
Howard and his minions systematically went about intimidating the Court, running a coordinated campaign to stem its perceived 'activism' by appointing a succession of black letter, conservative judges who would read doen the Commonwealth's powers.
Fast forward and Howard, the reinvented radical, has a different agenda - an aggressive and hostile move into states' rights, fuelled by a Senate majority that gives him unbridled power.
The wish list is growing by the day, ministers in education, health and defamation are all rubbing their hands and wondering how they can extend their influence.
But this new Radicalism is centring on the hostile takeover of state industrial relations laws, under the auspices of the Commonwealth's power to regulate Corporations.
This brazen play is the constitutional equivalent of a ram raid, using the Corporations power to bust through the shopfront of state's rights.
In effect the Howard government is saying that it's power to make laws about corporations totally overrides its existing constitutional limits on industrial relations, rendering an entire section of Constitution irrelevant.
While the balance of state-federal rights is hardly a barbeque stopping topic, there is a breed of lawyers who get very excited about the issues.
Lawyers like Greg Craven, a mild-mannered constitutional expert and former Victorian solicitor-general who let fly with an absolute spray about the Howard government's new modus operandi.
Here's a flavour what he had to say to Maxine McKew on the 7.30 Report:
"(I) think that conservatives have always understood that federalism is a form of insurance; that you divide power to make absolutely certain that you don't get a situation where any one person or entity controls the entire policy agenda and to make certain that if a particular person gets into a position of power, they do not have all the instruments of power at their beck and call."
"There may well be any number of reasons why you might want to pursue industrial relations reform.
"What you don't do is pursue it at the price of the constitution, because our federal constitution - which has worked, I think, brilliantly, as the Prime Minister keeps telling us, for 100 years - has always worked on the basis that you divide and balance power to make sure that power is not abused, and quite frankly, that is bigger than anything on the policy agenda, even including industrial relations."
If you were to pigeon hole Craven it would be along the following lines - conservative, black letter, not given to judicial activism ... Hold on, Johnnie, isn't this the job description you've been putting out for the High Court?
And here's the rub, in bludgeoning the High Court over native title and the expansive interrpetation of the external affairs powers, Howard now has the sort of court that will think long and hard before trashing the fundamental principles of federalism.
Our system of government is based on the lines between commonwealth and state powers; we can argue about where the line lies, but there is a line to be drawn. If a hostile takeover of state industrial powers doesn't cross that line, in comes very close.
One thing is clear, with this type of High Court, we should not be giving up on the state industrial relations system just yet.
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