Interview: Court's in Session
Industrial: Whose Choices?
Politics: Peter's Principles
Environment: TINA or Greener?
History: Its Not Just Handshakes and Aprons
International: US Locks out Jose' Bove
Education: No AWA - No Job
Culture: Jesus was a Long-Grass Man
Review: Charlie the Serf
The Locker Room
Belated Merry Whatmas?
The Grinch Who Stole Christmas
I Think Therefore I Scam
A Taxing Answer
Leslie John Turner
Court's in Session
Interview with Peter Lewis
Jeff you were the architect of the NSW State system which is the basis of all the State systems that the Howard Government is purporting to override. How personal is this battle for you?
The system we constructed in 1976 was one that had broad support across the employer and employee ranks. It has worked well. It has delivered some innovative and positive things for workplaces in NSW, and I think it would be a great pity and personal disappointment if it were to be either obliterated or emasculated, as is proposed in the Federal legislation.
This plan was really cooked up way back when the H R Nicholls Society really started. Have you seen this coming for a long time, this sort of attack on the essence of industrial relations in Australia?
Yes I have. If you believe in the deregulation of the labour market, that is, if you believe that neither the State nor third parties like unions or employer bodies or tribunals ought to be in involved in industrial relations, and that industrial relations ought to be essentially individual contracts between employees and employers, then it is a logical view to say that the State systems are a drag on that process. The State systems provide a refuge for those who continue to believe in some form of collective resolution of industrial disputes. And therefore, those ideologically committed to the emasculation of a regulated labour market would say, and have said for some time, we've got to get rid of those State systems, otherwise any attempt at the Federal level to revolutionalise the system and to get rid of the traditional conciliation and arbitration processes will be ineffectual.
We have seen the High Court this week first directions hearing on the challenge. What is the most that we could hope for from this High Court challenge? What is the prize at the end of this?
The maximum result for the trade union interest, and for the positions of the State Labor Governments would be a ruling that the corporations power, section 51(20) of the Australian Constitution, simply doesn't justify a wholesale regulation of industrial relations, even in relation to corporations, and that certainly it doesn't justify or support Federal regulation which is a hostile takeover of State industrial systems. That would mean, not an excessively narrow reading of the corporations power, but I think a reading of the corporations power which represents the real intention of those who formulated it in our Constitution. Mainly, that it is a power to regulate and protect corporations, particularly trading and financial corporations, rather than a general charter to deal with any activity that corporations might enter into.
Where would that leave the laws? We know what these laws try to do. Would they be able to do anything if the High Court challenge is successful?
If the High Court challenge were successful, then it is possible that the Federal Government could turn to reliance upon the foreign affairs power, that is international treaties, but Liberal Governments have shown a marked reluctance to do so because those international labour organization treaties contain all kinds of safeguards and checks and rights for working people that a conservative federal government would be disinclined to use as the basis for its legislation.
There may be areas in which the Commonwealth could legislate. It could certainly curtail its own system of conciliation and arbitration. That is to say, I think it would be a hard argument to suggest that the Commonwealth couldn't in some ways tie the hands of the Federal Conciliation and Arbitration Commission, or Federal or Australian Industrial Relations Commission, but if the High Court case was successful it couldn't do likewise in relation to State jurisdictions.
Do you see this case running ... It seems like a fairly straightforward argument - it either is an extent of the corporations power or it isn't. Do you see this case you would see running for months or is it a fairly succinct, short case we are looking at here?
No, I think the case can be shortly put in about three days. The only reason for three days is the number of parties and the complexity of the legislation itself.
You would know most of the High Court Justices. Which of those would you see as being the key people in making a decision on the legality of the Work Choices legislation? Which way would you see them going?
The High Court is quite hard to predict at the moment. It is a relatively conservative court, but then the arguments that the unions want to present are relatively conservative in terms of Constitutional interpretation. There are some Justices on the High Court who haven't really passed comments upon this area of discourse, and indeed the only Justice who has explicitly dealt with the matter is Justice Gaudron, who has since retired. So, I think anybody would be foolish to dogmatically predict the outcome of the High Court proceedings and foolish to predict the thinking of individual Justices of the Court which will take place in accordance with conventional jurisprudential reasoning.
Finally Jeff, Workers On Line readers know that you have had a tough couple of years. How are you? How are you traveling?
I am very interested in this current project and it is good to get my teeth into some real and substantive law and some tactics. So, I am very happy doing that.
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