No Vacancies

The Wide Ranging Politics of the Cook Bill

John Stone

In recent weeks we have seen the re-emergence of proposals from the Minister for Industrial Relations, Senator Peter Cook, for a major legislative initiative---what we may call, for shorthand purposes, the Cook Bill.

This proposed legislation is not new. On the contrary, it has a long history, including a lengthy gestation period before it even saw the light of day. In this paper I shall first trace that history---essentially, that of the Hancock Report on Australian Industrial Relations Law and Systems.

Today I shall concentrate on the major recommendation of that Report, namely that dealing with the proposed establishment of a new Labour Court and on a number of associated matters, such as the rule of law within the industrial relations arena, the role in that regard of actions in the industrial tort arena under sections 45D and 45E of the Trade Practices Act, and the implications of all these questions for civil liberties generally.

The Hawke Government was first elected on 5 March 1983. A month later, the so-called National Economic Summit noted the Government's intention 'to hold a fundamental review of the Conciliation and Arbitration Act and Regulations'. On 14 July 1983 the then Minister for Employment and Industrial Relations, The Hon. Ralph Willis, announced the Government's appointment of a Committee of Review into Australian Industrial Relations Law and Systems.

Many years earlier, Mr Willis had served as a research officer assisting the ACTU's then industrial advocate, one Robert James Lee Hawke, prior to his becoming President of the ACTU. In turn, after a period himself as ACTU industrial advocate, Mr Willis had gone on to another position of 'industrial advocate' as Member for Gellibrand in the Commonwealth Parliament. His erstwhile boss similarly became, in 1980, the Member for Wills and Shadow Minister for Employment and Industrial Relations, until in the guise of a drover's dog, he defeated, first, The Hon. Bill Hayden (then Leader of the Opposition) and secondly, The Right Hon. Malcolm Fraser, to become Prime Minister. With the trade union movement's 'political arm' thus established in and around The Lodge, the ACTU was wasting no time advancing its cause.

The Committee of Review announced by Mr Willis comprised three people, namely:

  • Mr Charlie Fitzgibbon, who in his long-standing capacity as Secretary of the Waterside Workers' Federation---and latterly as Senior Vice-President of the ACTU---had presided over the industrial relations practices of one of the worst unions in the country.
  • Mr George Polites, who for many years had been Industrial Advocate for the Victorian Employers' Federation. A long-standing member of the industrial relations club, Mr Polites had already been honoured, under what were sometimes laughingly known as 'conservative' governments, with Membership in the Order of the British Empire (MBE) and Commandership in the Order of St Michael and St George (CMG). A man of catholic tastes, however ---particularly where industrial relations were concerned---he had also been awarded, in the Hawke Government's first Honours List, the extremely senior decoration of Companion of the Order of Australia (AC).
  • Professor Keith Hancock, previously an economist and researcher in the area of industrial relations at the University of Adelaide and Flinders University, and then Vice-Chancellor of the latter University, was named as Chairman. His honour was to come later when, after the Committee had reported, he was appointed as a Deputy President of the then Conciliation and Arbitration Commission.

The Committee was required to deliver its report by 31 March 1985. With an election not due until the end of 1985, this should have given time for matters to proceed smoothly to the enactment of its recommendations in the Budget Session of that year.

A secretariat to the Committee was appointed, drawn entirely from Mr Willis' department, and comprising ---purely administrative staff apart---no less than eight 'policy' officers drawn entirely from the 'fridge dwellers' of Mr Willis' department (a term first coined in Dr Gerard Henderson's paper 'The Fridge Dwellers---Dreamtime in Industrial Relations', delivered to the inaugural meeting of this Society).

Nevertheless, the best laid plans of mice and ACTU officials (both within and without the Government) 'gang aft a-gley'. For reasons of pressing electoral advantage, Mr Hawke in fact called his next election ahead of time, in December 1984. This was the first upset to the timetable of industrial relations 'reform' (spelled r-o-r-t) of which the Hancock Committee's appointment had been the first step.

The Committee, after a slight delay requiring the Minister to grant it a month's extension, nevertheless reported on 30 April 1985. Apart from a host of recommendations of the most boring kind, so beloved of the bureaucracies spawned by our industrial relations system, its truly major recommendations included the following:

  • 'That present legislation which vests federal judicial power in industrial relations and related matters in the Federal Court be repealed, and the Industrial Division of the Federal Court abolished.' (Recommendation 22).
  • 'That a new..... Court---to be named the Australian Labour Court---be established to exercise the judicial power of the Commonwealth in respect of industrial relations and related matters', and that 'administrative arrangements' for this Court 'come within the portfolio responsibility of the Minister for Employment and Industrial Relations' (as distinct, that is, from the Attorney-General, who is responsible for what I may call the real courts). (Recommendation 23).
  • 'That the Conciliation and Arbitration Commission be abolished and a new (body), to be known as the Australian Industrial Relations Commission, established.' (Recommendation 25).
  • 'That the legislation provide for the Chief Judge of the Australian Labour Court to be the President of the Australian Industrial Relations Commission; and that the commissions be separate and concurrent.' (Recommendation 28).
  • 'That the legislation provide for the Judges of the Australian Labour Court to be Deputy Presidents of the Australian Industrial Relations Commission; and that the commissions be separate and concurrent.' (Recommendation 29).
  • ' ... There should be no right of appeal to any other Court against a decision of the Australian Labour Court'. (Recommendation 31).
  • The Office of the Industrial Registrar 'should perform statutory functions and provide administrative support and services to both the Australian Labour Court and the Commission'. (Recommendation 38).
  • 'That the legislation contain no provisions which would have the effect of making it (a punishable) offence ... for persons or organizations to engage in strikes, lockouts or other forms of direct industrial action'. (Recommendation 135).

How could this Committee have arrived---unanimously ---at this set of amazing recommendations?

In seeking the answer to that question I have recently re-read the relevant sections of the Report. That was by no means a major task. Indeed, the first observation to make about these recommendations---with their sweeping implications for our fundamental civil liberties ---is just how little argumentation they are built on. They are, clearly, the products of minds which, blunted by too long an exposure to the brutalities of our industrial relations Gulag, have at least this view in common: that civil liberties basically do not matter where trade union power is concerned, and that institutional arrangements should be made accordingly. This is despite the fact that, as polling research carried out for the Committee itself clearly confirmed, those views are totally out of sympathy with the views of an overwhelming majority of Australians.

Let us nevertheless look at the process of reasoning (sic) by which the Committee arrived at its important conclusions, both as to the Labour Court and as to the matter of penalties for various forms of industrial action.

As to the Labour Court, it is fair to say that there really is almost no argument at all for the establishment of that body. After very briefly reviewing the institutional and legal history, culminating in the Boilermakers' case in 1956, the Report turns to its 'Consideration of the Issues', which it accomplishes in two paragraphs.

In the first (para. 8.5), the Committee says that it has been led 'to the conclusion that there is dissatisfaction with the present institutional arrangements, grounded in a belief that the overall effective functioning of the system has been impaired by the division of arbitral and judicial powers'. It gives no reasons for having been so 'led', nor does any of the material in the relevant Appendix to the Report (Appendix VII) provide any such reasons.

That Appendix lists the numerous submissions from industrial relations club members (including a number of employers or employer associations) supporting the view that the Constitutional provisions confining the exercise of judicial powers to proper Courts, should be overturned. Otherwise, it comprises merely a consideration of the legal devices which may be used for attempting to do so.

The second paragraph of the Committee's 'considerations' (para. 8.6) then simply records that Committee members 'are impressed by the view ... that the present institutional arrangements have an adverse effect on the operation of the system'. The Report then goes on to consider 'Options for Change'---all of them involving 'either a reversal or a modification of the doctrine expressed in the Boilermakers' case'. (para. 8.7).

At no time did the Committee appear to consider whether 'the operation of the system' might not be the sole consideration to be taken into account in determining whether an attempt should be made to get around the law.

For example, was the High Court not right in deciding in 1956 (a view subsequently confirmed in the Privy Council, to which an appeal was taken) that:

    ' ... a body created by Parliament, called a Court, having justices with all the attributes required by section 72 of the Constitution and upon which Parliament had, in terms, conferred judicial power, was nevertheless not a federal court because Parliament's primary or essential intention was to create a body with arbitral powers'? (Emphasis added).

Or again, was not the Privy Council right when it said (on appeal) that:

    '... in a Federal system the absolute independence of the judiciary is the bulwark of the Constitution against encroachment whether by the legislature or by the executive. To vest in the same body the executive and judicial power is to remove a vital constitutional safeguard'?

In short, there is no indication in the Report that the Committee ever considered that there may be, in our society, liberties and rights, the importance of protecting which goes far beyond the grubby little interests of those who run, and manipulate, our industrial relations machinery.

The mention of liberties and rights leads me to remark on that section of the Report dealing with those matters. Remarkably, that discussion occurs, not within the context of a major chapter dealing with such basic questions as freedom of association (and non-association), the right of individuals to be free from physical coercion or other forms of personal intimidation, and so on. It occurs within a section headed 'Can Sanctions Work?'

The Committee begins this section (para 10.288) with the not unpromising statement that 'we understand and sympathise with the widely held view that arbitration is an extension of the domain of law and order ... ' and that, therefore, 'parties which fail to accept the outcomes of arbitration---or even to await those outcomes before resorting to industrial action ---should be subject to penalties'.

Unfortunately, however, this view 'challenges a conception of trade unions which ... is a potent factor in the union movement and cannot be simply legislated away', namely:

    'that unions exist to further their members' interests by struggle, and that to renounce important weapons for furthering those interests is to call into question the unions' very reason for existence'. (para 10.290).

Moreover, 'the analogy with civil litigants ... ignores a major ingredient of the industrial relations scene ---the phenomenon of power'.

Here (para. 10.293) we come to the nub of the Committee's argument. In some of the most shameful sentences ever committed to paper by any Committee of free men in a free society, the Committee says:

    'If we ask why litigants ... usually accept the adjudicators' decisions, we find part of the answer in the ethics accepted by the disputants; but part, too, lies in their relative weakness ... : the ethic of accepting decisions gains strength from the difficulty of doing otherwise. By contrast, trade unions are ... centres of power ... . It is a mistaken view of the pluralistic society to assume that every 'subject' is equally dominated by the might of the State and its arms of enforcement. Some may wish that things were different: but vain hopes are no basis for effective policy.'

The brutality of these words, and their essential contempt for the rule of law, hardly needs emphasising. What they say, in effect, is that:

  • trade unions do not and will not respect the rule of law ('the ethic of accepting decisions');
  • they do not regard themselves as 'equally dominated by the might of the State' as the rest of us;
  • since they will not observe the law, it is no good basing our industrial relations arrangements upon Justice Henry Bournes Higgins' view that, in return for the privileges accorded them in his 'new province for law and order', they should do so; and
  • though 'some of us' may deplore this (the Committee itself gives no indication of being among them), 'vain hopes are no basis for effective policy'.

Having thus uttered a set of judgments which would not have been out of place in a Soviet court, the Committee then says (para 10.294) that it 'must have regard to the issue of civil liberties involved in penalising direct action'.

Apart from some pallid discussion elsewhere in the report, of the pros and cons of permitting 'conscientious objection' to membership of trade unions---a discussion which, incidentally, leaves the real issues almost totally unaddressed---this appears to be the only reference in the Report to the matter of civil liberties.

Is it not remarkable then that the one set of civil liberties considered is those of strikers?

Not a word is said, in this context, of the civil liberties of (to name but a few):

  • employers (of those who go on strike in breach of their contracts);
  • other employers whose business is thereby adversely affected (e.g. the Ford motor company when the employees of the Borg-Warner axle plant go on strike);
  • those employees of the firm against whom the strike is called who don't personally want to go on strike, but are forced to do so against their will;
  • other employees, of firms whose business is adversely affected, and who may have to be laid off, or lose opportunities for overtime;
  • members of the general public (e.g. working mothers who, when school-teachers go on strike, may have to miss work to look after their children; people who can't get to work because of a public transport strike); and so on.

None of these categories of civil liberties is, as I say, even mentioned. No doubt the Committee would say, in defence of not doing so, that such matters are not to the point---'some may wish that things were different; but vain hopes are no basis for effective policy'.

Because I shall have something to say, later in this paper, about the relevance to all these matters of the law of industrial tort, I note here also another reason advanced by the Committee (para 10.298) 'for questioning the expedience of any great dependence on penalties' (note incidentally that word 'expedience'), namely:

    'Employers technically have available to them remedies in tort against unions which promote strikes. That tort in question is one of conspiracy to induce persons to break their contracts ... . Consequently, employers could sue unions for damages due to strikes. While this response has always been available, only a handful of tort actions have been launched, most of which were not proceeded with ... employers have evidently assessed that the likely overall effect of this form of 'penalty' could be unfavourable. Either this must reflect a general hesitancy about penalties; or there must be specific reason for supposing that penalties arising from tort actions would fail where others would succeed. No argument for the latter view was addressed to us.'

Ergo, 'this must reflect a general hesitancy about penalties'.

Now of course there is no doubt that employers have experienced 'a general hesitancy about penalties' within the industrial relations system. There are grave risks in seeking penalties against the lawless in tribunals which themselves not only do not dispense law---but only attempt to 'settle disputes'---but also may even be composed of former law-breakers!

It is however a total travesty of reasoning to argue that because, until 1985, 'only a handful of tort actions had been launched, most of which were not proceeded with', therefore there must exist 'a general hesitancy about penalties' against industrial lawlessness, as against any other form of lawlessness.

A truer explanation of the history of industrial tort actions in Australia might, I suggest, go broadly as follows:

  • We have had, since 1901, a 'new province for law and order'. As Higgins (to his credit) always insisted, there is no place for the strike, or other forms of industrial lawlessness---of the kind to which actions in industrial tort might be addressed---in such a system.
  • While that view prevailed, and was observed, there was no need for actions in tort.
  • Gradually however industrial lawlessness increased ---particularly following the infiltration of the trade union leadership by the Australian Communist Party---and strikes proliferated. Nevertheless, the existence for a time of other, quite separate sanctions within the conciliation and arbitration system preserved it for a time from a total slide into unlawfulness.
  • The O'Shea case (1969) saw the effective abandonment of any sanctions within the system.
  • That development was quickly followed by the advent to power of the Whitlam Government, the appointment of Mr Clyde Cameron as Minister for Employment and Industrial Relations, and his sacking in 1975 and replacement by (then) Senator James McClelland. During this period of general upheaval, a policy of surrender to trade union power for the most part prevailed.
  • Next, we had the advent of the Fraser Government in tumultuous circumstances. That Government began to legislate (timidly) by amendments to the Conciliation and Arbitration Act and the Public Service Act, and (importantly) by amendments to the Trade Practices Act (Sections 45D and 45E dealing with secondary boycotts). The 'climate' began, somewhat, to change; but because that Government, particularly after the sacking of Ian Viner, lost its way in industrial relations as in so much else, the basic policy of 'surrender' still mainly prevailed.
  • Finally, the advent to power of the Hawke Government in 1983 saw a quantum leap in trade union power which, again, deterred all but the bravest souls from resisting the consequences of that power.

Faced with all this utter mayhem, employers had roughly four alternatives:

    (1) To surrender to trade union power (broadly, the predominant course during the '70s and most of the '80s).

    (2) To shut up shop and go elsewhere---overseas or, within Australia, to Queensland, where for a number of reasons a more productive industrial climate prevailed. (The latter option is no longer available; the former, regrettably, is being availed of more and more frequently.)

    (3) To act with equal lawlessness, or what some might see as such. The most frequent category of such action was to bribe key trade union officials---on-site organizers, shop stewards, or more senior officials ---to induce them to 'call off the dogs'. There has been a good deal of this, particularly in the transport and the construction industries; one or two inquiries have shed light on it, but most of it has gone on 'under the lap'.

    Some people would also put some aspects of farmers' behaviour in the live sheep dispute, and the wide combs dispute, in this category of 'fight lawlessness with lawlessness'. Technically I don't think that was so, but in the sense that employers in those cases also were 'taking things into their own hands' (because they had no alternative) there was perhaps an element of similarity.

    (4) To turn to the real law, in those cases where such action was justified, and seek redress, both by way of injunctions, and of actions for damages suffered at the hands of strikers, in the real courts of the land. At the time of the Committee's report, that course had barely been embarked upon in the cases of Mudginberri and Dollar Sweets.

In short, the Committee's conclusion that the very limited use of industrial tort actions---a position which however was changing almost as they were writing ---suggested 'a general hesitancy about penalties' against industrial lawlessness was, in my view, without foundation even at the time it was arrived at.

It was however probably true to say, as the Committee did (para 10.301) that, at the time of writing, 'there is an air of resignation abroad that the implementation of sanctions against unions is extremely difficult, if not impossible'. After all, The H R Nicholls Society had not then been established!

Their timing notwithstanding, the Committee's recommendations are all the more indefensible when considered against the results of polling research which it had conducted into public attitudes to these questions. In para 10.282, the Committee notes that 'an overwhelming majority (90 per cent) of members of the general public supports the imposition of some form of penalty for noncompliance with 'rules''. Nevertheless, 'our views ... differ somewhat (sic) from what is apparently the predominant community opinion'. (para 10.284).

In fact, the results of the Committee's polling go much deeper to the heart of the issues before the Committee than this single question of attitude towards penalties. Consider, for example, the following points---all set out in Appendix IX, but so far as I am aware, not referred to by the Committee in its Report proper:

  • In determining wage rates, hours of work and working conditions, 34 per cent of respondents 'favoured direct negotiations between unions and employers without interference from the Commission'.
  • Interestingly, 'those full-time workers on the lowest incomes were most likely to favour direct negotiations. Those earning under $12,000 were almost equally divided between direct negotiations and a major role for the Commission'.
  • 'Relatively few Australians (28% of men and only 17% of women) favoured the strike as an acceptable union activity, and fewer still (14%) accepted the use of work bans. Picketing, and strikes for political reasons, attracted support from less than 10%' (in fact, 7% and 6% respectively).
  • Females were 'sharply less tolerant of all these activities than are males'.
  • 'The overwhelming majority of Australians (85%) favoured closer communication and joint decision-making by workers and management ... particularly ... when an industrial dispute was in prospect.' (This finding would seem both to support enterprise bargaining arrangements and to question the role of agents 'external' to the enterprise, whether they be trade union organizers or Industrial Relations Commissioners.)
  • 'Being a member of a trade union did not affect to any degree one's view of the functions of the unions' (except on the issue of taking transgressing employers to court).

So why, in the face of all reason, of all respect for civil liberties, and of what the Committee itself called 'overwhelming' public opinion, did the Committee arrive at its recommendations?

As observed earlier, there is little or no explanation given for that outcome. Perhaps the nearest the Committee gets to such an explanation is in para 10.304, where it says:

    'Our proposals that strikes, lockouts and other forms of direct industrial action attract no monetary penalties under the legislation reflects our support for ... the importance of securing the commitment of the industrial parties to the system.'

This is rather like the Prime Minister's justification for the government's multi-culturalism policies. You can give allegiance to any culture you choose so long as you profess a 'commitment to Australia'. This overlooks the rather fundamental point that if you continue to give your allegiance to a culture which teaches you, as a fundamentalist Moslem, that the only good Jew is a dead one---or, as a Croat, that the same is true of a Serb---no amount of professed 'commitment to Australia' is likely to make you a good Australian.

Such hocus-pocus constitutes, at best, a triumph of hope over experience and, at worst, a most cynical disregard for reason. In just the same way, so is the Committee's support for abandoning compliance sanctions in the professed interest of 'securing the commitment of the industrial parties to the system'---even assuming, as I do not, that 'the system' is a worthy object of such commitment.

Let me now say a brief word about immunity from actions in tort. After all, the Committee itself on this topic could hardly have been briefer, confining its views to a single paragraph (10.318).

Noting that 'some parties' had asked it 'to recommend the abolition of liability for tort in respect of industrial disputes', the Committee says that:

  • 'There is some doubt as to whether the Commonwealth could confer immunity against the operation of State laws ...'
  • 'Approaching the proposal on its merits. ... we could not offer a single opinion about it'.
  • 'One view within the Committee was that immunity from tort actions in respect of industrial disputes might be conferred on registered organizations ...'
  • 'None of us believe that unregistered organizations should be relieved of their ordinary legal liabilities'.

Note well that final sentence. Although thrown out almost accidentally, it goes to the heart of the debate. For what it quite clearly says is that the ordinary rule of law should continue to prevail (even in the case of industrial disputes) for other than 'registered organizations' (including even some trade unions which are not so registered).

In a paper to this Society's seminar on Trade Union Reform in 1986, David Russell reminded us of the words of Thomas Fuller of over 300 years ago, directed, as he said, 'to the pretensions of the Stuart Kings, who claimed to rule by divine right and not be subject to the laws which bound their subjects.' In truth, as Fuller said:

    'Be you ever so high, the law is above you'.

Those who would abolish the application of the law of tort to trade unions would presumably amend this to say that:

    'Be you ever so high, the law is above you, unless you are a registered organization.'

The attitude of the Hancock Committee to Sections 45D and 45E of the Trade Practices Act is in practice very similar to its attitude to the law of industrial tort---to which, of course, these sections are related. As the Committee says (para 10.319), these sections 'change the legal situation, in comparison with the common law, by somewhat reducing the difficulty of establishing the course of conduct which brings the remedies into effect.'

One view within the Committee about sections 45D and 45E was that the activities they deal with 'are essentially industrial and should be dealt with by tribunals which understand industrial relations processes and the requirements of dispute resolution.'

The contrary view within the Committee:

    'differentiates sections 45D and 45E from other industrial laws as dealing with the interests of third parties ... a party which is in no conflict over pay or conditions should have legal redress for its grievance and should not be expected to rely upon the forms of discretion and compromise which are appropriate to industrial relations.'

Needless to say, I find 'the contrary view' compelling. What is however strange about it is that, whichever member or members of the Committee held it, he or they were apparently able to reconcile that view with full acquiescence in the view, quoted earlier, about the role of compliance sanctions within the industrial relations arena.

So much, I think, for the Hancock report itself---the background to Senator Cook's new Bill now in prospect.

In the Autumn 1987 Session of the Parliament, Mr Willis sought to proceed to give effect to the Committee's recommendations. His Bill proposed:

  • a new Industrial Relations Commission;
  • a Labour Court, headed by a Chief Justice who would also be the President of the Commission, and whose other Judges would be drawn from the ranks of those Deputy Presidents of the Commission who are legally qualified (in some sense of that term);
  • removal to the Labour Court of hearings of all legal industrial causes, including in particular all common law actions in industrial tort as well as actions brought under the statute law provisions of Sections 45D and 45E of the Trade Practices Act;
  • provisions requiring plaintiffs in such actions to obtain from the Commission certificates granting the right to proceed with them in the Labour Court.

The Willis Bill provoked a major public outcry. In particular, the business community reacted with genuine anger. It mounted a major television advertising campaign, financed largely from the National Farmers' Federation Fighting Fund.

These advertisements---which happen to be just the kind which would be banned by the Government's present proposals to ban all political advertising via the electronic media, whether during the course of actual election campaigns or not, and whether by political parties or anyone else---were extremely effective. That is, they were very damaging to the trade unions and their Ministerial allies. Cabinet forced Mr Willis to withdraw his Bill, and the Prime Minister gave a public undertaking not to proceed with it. He then immediately called the 1987 election.

Nearly four years---and another election---later, we now have a situation in which:

  • The Labor Party trails the Federal Opposition by 16 percentage points in the latest Morgan Gallup poll.
  • The Prime Minister's personal approval rating, despite a large (temporary) boost during the Gulf war, has fallen 10 points (to 38 per cent) during the most recent polling month, while his disapproval rating has risen 8 points.
  • Although marginally (2 percentage points) still preferred to Dr Hewson as Prime Minister, Mr Hawke's relative rating on that score also has declined by 8 points during the most recent polling month.
  • The same questions about the leadership which, at the end of last year, were beginning to plague the Labor Party, are gradually re-surfacing in Canberra.
  • The future of Paul Keating, who as Treasurer has impaled himself on a policy which, after more than three years of pain, shows no sign of working, is clearly under pressure (as Mr Dawkins' less than seemly attempts to position himself in the Treasury role only too clearly demonstrate).
  • The NSW Labor Party is about to lose an election, within the next couple of months.
  • The Victorian Labor Government has already abandoned itself not merely to defeat, but to near annihilation, whenever the election in their State may occur.
  • The Western Australian Labor Government, as its Royal Commission into WA Inc proceeds, is moving into a mode which looks more and more like Victoria (only worse).
  • The South Australian Government has been greatly tarnished by the SA State Bank affair, and no longer seems to be enjoying its previous relative immunity from criticism.
  • In sum, quite thoughtful people---including people within the Labor Party---are canvassing the likelihood that, by mid-1993 or thereabouts, we shall no longer have in Australia a Labor Party which bears any resemblance to that which Australia has known for the past century.
  • Meanwhile---and very importantly---the Federal Liberal Party has, gradually, begun to get its industrial relations policy act together. Its Shadow Minister for Industrial Relations is a seasoned politician with senior Ministerial experience in the Fraser Government, and a fairly clear idea of what are the objectives to be accomplished. He also has the backing of his leader, and of several other key people in the prospective Cabinet. In short, from the viewpoint of the ACTU, all the omens are bad.

It must therefore be clear to all thoughtful people within the ACTU---and there are such people within that body, even if one might question the value judgments which underlie their thoughts---that, if they are going to shore up their bastions of privilege, it really is a case of now or never.

Moreover, the very same shattering loss of confidence in Labor which underlies that political prospect just outlined, also means that, at the next Federal election, Labor will depend even more heavily than it has traditionally done upon receiving assistance from the union movement.

This is not just a matter of campaign funding, vital though that promises to be in a situation in which business people are showing all the signs of no longer wanting to know the Labor Party bagmen.

It is also a matter of all the other forms of assistance which the trade union movement can provide. With a degree of disaffection among Party members in the branches which is approaching positive loathing, such assistance will be all the more essential at the next election. To stuff envelopes, carry out mail drops, put up electoral placards, organize meetings, hand out 'How to Vote' cards---all these fundamental electoral activities require man (and woman) power. With the branch membership 'switched off', there is only one source those people can come from in Labor's case---the trade unions.

The 'deal' that is shaping---and which to all intents and purposes has already been shaped---is therefore obvious.

The ACTU will 'use its best endeavours' to assist the Labor Party, both withs and foot-soldiers at the next election, on condition that the Government now uses its best endeavours to pass into law the proposals of which, in 1987, the union movement was cheated.

It is interesting that, although this deal actually began to surface late last year---indeed, for that very reason this Conference was at one time planned to occur in late February---Senator Cook's Bill has now been deferred until the Budget Session of the Parliament this year.

Meanwhile, and no doubt coincidentally, the Government proposes to pass, in the current Session, legislation which will prevent the business community campaigning against the Cook Bill as it did in 1987---or at any rate, as effectively. For the same reason, we have not yet seen the draft Bill, on the pretext that a 'process of consultation' is in train, and that until that has been completed the details of the Bill cannot be settled.

It is, no doubt, no more than characteristic that those 'processes of consultation' extend only to such Industrial Relations Club 'family' bodies as the National Labour Consultative Council, the Confederation of Australian Industry, the ACTU (which of course is supererogatory in any case), and so on. There is no suggestion that the public should be involved in these 'processes of consultation', and the briefing document prepared under the Minister's aegis for circulation to these IRC bodies is regarded as 'confidential'.

The really important 'process of consultation', however, lies elsewhere again. I refer to the ACTU's (and Senator Cook's) consultation with the spokesman on industrial relations matters for the Australian Democrats, Senator Paul McLean. Since Senator Kemp will be particularly addressing the role of the Democrats in this matter, I shall not say much about that, other than to note that it is clearly crucial.

Now it may be argued that, if the Government does go down this road, hand in hand with Janet Powell (so to speak), they will incur great electoral hostility ---such hostility indeed that prudent politicians would back off, as Mr Hawke did in 1987. So perhaps we should not be too alarmed, as yet---perhaps the Government will have second thoughts.

Well, perhaps it will; but this is not 1987, and I doubt if the ACTU, in particular, is now going to have any second thoughts. From where it sits, it contemplates two options:

    (1) Let the Government off this particular hook, watch Labor lose the 1993 election in any case, and face an Opposition without the additional advantages with which the Cook Bill could endow the union movement; or

    (2) Recognise that Labor is going to lose in 1993 in any case, and demand their pound of privileged flesh before that happens---that is, in the coming Budget Session.

I suggest to you that, from the ACTU's viewpoint, the choice is clear.

Unless therefore something unexpectedly emerges which would drastically alter that analysis, I would expect to see the Coalition parties take office with the need, not merely to implement their own industrial relations legislation, but also to repeal the 1991 Cook Act.

The Opposition has already made it clear that, if they are thwarted by the Senate on their industrial relations legislation, they will treat that legislation as the basis for setting in train a double dissolution procedure under Section 57 of the Constitution. That Section, you will recall, is as follows:

    'If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously.' (Emphasis added).

I have emphasised in that passage the phrase 'or fails to pass' (twice occurring). I have done so because there is inherent in that phrase a significant (though imprecisely defined) capacity for delay by the Senate should it, on the one hand, not wish to assent to a Bill but, on the other hand, not want to provide grounds for an early double dissolution.

There is in fact a considerable body of legal opinion available as to the precise interpretation of that phrase, which I suggest that the Opposition will do well to examine if it has not already done so. For example, is referral of a Bill to a Senate Committee for examination 'failure to pass'? I think not, in itself, but something will certainly depend upon the length of time which is given to the Committee in which to report to the Senate.

In the end, it will be for the Governor-General to judge whether an inordinate delay, or a delay which the Government claims to be inordinate, constitutes a 'failure to pass'. His Excellency would no doubt be guided in such a case by the advice of his Ministers, but in such a case there is clearly also room for the exercise of his discretion.

Of course, no problem of this procedural kind may arise, because the Australian Democrats---should they hold the balance of votes in the Senate after the next election---might actually welcome a double dissolution, and be only too happy to facilitate the Government bringing one on by expediting rejection of the legislation. In a double dissolution after all, the quota for election to the Senate is almost halved, so that such an election would almost certainly result not only in the re-election of all sitting Democrat Senators, but the election of some additional ones (and/or possibly some other Senators from other than the major Parties---whether Greens, Nuclear Disarmers, Independents, and so on).

In the absence of some better 'feel' for the likely constitution of the Senate after the next election, it is difficult to arrive at very precise conclusions.

It is possible, for example, as suggested earlier, that in the aftermath of that election the state of the Labor Party throughout the country will be so abysmal that its Parliamentary wing (or perhaps even a certain number of Senators---particularly long-term ones) will reckon that another early election is to be avoided at all costs; and that therefore the lesser of two evils will be to let the legislation through. What such an outcome might do for the longer-term relationship between the Parliamentary Labor Party and the trade union movement makes interesting food for thought; but even there, some of the more thoughtful people in the Labor Party realize that in the longer-run that umbilical cord must probably be cut in any case.

Meanwhile, in the weeks and months immediately ahead, it will of course be appropriate to mount as strong an attack as possible upon the Cook Bill and all it stands for.

Why HR Nicholls?

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