The Wide Ranging Politics of the Cook Bill
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
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
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
- 'That the Conciliation and Arbitration Commission be
abolished and a new (body), to be known as the Australian
Industrial Relations Commission, established.'
- '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
- '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
- ' ... There should be no right of appeal to any other
Court against a decision of the Australian Labour Court'.
- 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'.
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
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
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
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
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',
'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
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
- 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
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'),
'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
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
- 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
- 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
(1) To surrender to trade union power (broadly, the
predominant course during the '70s and most of the
(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
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
(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
- '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
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
'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
- '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
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
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
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
- 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
- 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
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
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
(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;
(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
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.'
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
Why HR Nicholls?