So far, the debate on the Howard Government’s proposed industrial
relations reform has concentrated on the effects of the changes
themselves – loss of workers’ rights versus increased workplace
flexibility, or something of that sort. But an article today, by The
Australian‘s new legal affairs editor Chris Merritt, tries to shift the focus to their legality.

The Labor state governments are planning a high
court challenge to the reforms. If the plain intent of the constitution
is to be followed, they should succeed. Section 51(xxxv) gives the
commonwealth power to legislate for “conciliation and arbitration for
the prevention and settlement of industrial disputes extending beyond
the limits of any one state.” It is inconceivable that its authors
would have expressed that limitation so carefully if they also intended
the commonwealth to have power over industrial relations in general.

For most of our constitution’s history, it has been
the conservatives’ role in politics to defend the states’ rights and
the federal balance, while the left has embraced centralism under the
belief it’s more democratic or progressive. Merritt neatly
punctures that illusion: “The greatest potential threat to individual liberty is an
over-mighty government. By shackling the states and the commonwealth to
a constitution that limits their powers, the founding fathers were
designing a system to keep that threat at bay.”

The novelty of the present period is that for the
first time we have a non-Labor government that’s explicitly committed
to centralism. It has no patience with procedural restraints. Just as
the overthrow of Saddam Hussein was pursued regardless of international
law, so the quest for industrial relations reform is to be pursued
regardless of constitutional niceties. It will be interesting to see
how much resistance they meet from the traditional defenders of
federalism. As Merritt says, while the Labor governments “no doubt
are motivated by a desire to protect their union backers, they are
really defending the original intent of the constitution.”