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February 2006   
F E A T U R E S

Interview: Court's in Session
As the silks line up to challenge WorkChoices, Jeff Shaw is fighting for his own legacy - the NSW IR system.

Industrial: Whose Choices?
The Howard Government's WorkChoices legislation has been dissected by lawyers and the commentariat; now it's the turn of political economists.

Politics: Peter's Principles
Forget John Howard. The force behind WorkChoices is Peter Costello. The Prime Minister-in-waiting has devoted a lifetime to undermining the security and living standards of Australian families, Jim Marr reports.

Environment: TINA or Greener?
What does the greenhouse effect and legislation to control workers have in common, asks Neale Towart

History: Its Not Just Handshakes and Aprons
Power. They have it, we want it. Friendly societies tried to keep it for working people, writes Neale Towart

International: US Locks out Jose' Bove
The US Government has refused to allow France's most famous farmer Jose Bove into the country to address a conference

Education: No AWA - No Job
The Howard Government has given the Australian community its first view of the future by forcing new staff at Ballarat University to sign an Australian Workplace Agreement if they want a job, writes Jenny Macklin.

Culture: Jesus was a Long-Grass Man
The writings of a Middle Eastern theologian may provide guidance to those grappling with indigenous issues, writes Graham Ring

Review: Charlie the Serf
Nathan Brown takes the sledgehammer (and sickle) to Mr Wonka's Chocolate Factory.

C O L U M N S

The Soapbox
Hitler in Bowral
Political censorship has made its wasy to the sleepy Southern Highlands, wrties Rowan Cahill.

The Locker Room
No Laughing Matter
Phil Doyle tries to take Australian sportspeople seriously, and fails.

Parliament
The Westie Wing
Ian West is mistakenly sent an advance copy of John Winston Howard’s Little Blue Book of Australian History…

E D I T O R I A L

Total Impact
The long hot summer, the calm before the storm, is finally passed; and as March 1 approaches the new world of work is looming and the extent of the attack on organised labour is becoming clear.

N E W S

 Capital Punishment on the Menu

 Della Builds Fortress NSW

 Unfair Sackings Face Challenge

 Slave Contractors Sprung

 Holden's Bad Deal for Adelaide

 ACCI Never Sleeps

 STOP PRESS: Guest Worker Plan Goes to Water

 Taking a Punt on Melbourne Cup

 Backlash on Job Cuts

 Howard Coy on Ad Orgy

 Newcastle Rails Against Contracts

 Union Man Eyes Cuts

 Free Enterprise Kills Hundreds

 Aussie Icon Moves to China

 Activist's What's On!

L E T T E R S
 The Best for the Best
 Belated Merry Whatmas?
 The Grinch Who Stole Christmas
 I Think Therefore I Scam
 A Taxing Answer
 Leslie John Turner
WHAT YOU CAN DO
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Interview

Court's in Session

Interview with Peter Lewis

As the silks line up to challenge WorkChoices, Jeff Shaw is fighting for his own legacy - the NSW IR system.

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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