If you’ve ever read Al-Kateb one may get the impression that sometimes they ‘slug it out’ beforehand, but not so.

At some time in the future, however, the government of the day will almost certainly see political advantage in getting rid of the Commission and taking over its functions directly. I suspect some business interests are already urging that outcome after the first minimum wage decision, which must have stunned a lot of small businesses and made them wonder if they’d been tipped from the frying pan into the fire.

There’s nothing radical in governments directly fixing wages and conditions of employment – they’ve always done it in most countries. It does, however, deprive politicians of a convenient scapegoat. From now on they won’t be able to blame the mythical ‘independent umpire’ for decisions they don’t like. If they want to argue that decisions of the FPC are against the national interest, they will now simply be able to change them. The nett effect of this professed ‘deregulation’ of Australian industrial relations may ultimately be re-regulation under a new system.

We don’t know yet whether Howard will show similar restraint in how far he now pushes the corporations power. The fact that he’s done so in IR is hardly a big surprise given that it’s been one of Howard’s abiding obsessions throughout his political life. It doesn’t mean that he is likely to regard the High Court’s Work Choices decision as a green light for a wholesale overrunning of traditional State powers and functions. It would be very difficult for Howard to use 51(xx), for example, to make substantial incursions into power, water, roads, sewerage, planning and bulding regulation etc. Even in education and health (where some including Callinan and Kirby have suggested that possibility), the Commonwealth could only intrude on some private hospitals and schools (probably not including the great bulk of parish Catholic schools which are not incorporated).

OTO as you observed in your initial comment, it might well be possible for Howard to introduce more far-reaching environmental legislation than occurred under Hawke/Keating using the external affairs power, because most developers and polluting enterprises are corporations. However, it isn’t likely that Howard will choose to do this, and if Labor does so it is more likely to be primarily under the cover of some new Kyoto-type agreement (or the existing one).

The federalist sky isn’t falling; it fell 86 years ago, but hasn’t succeeded in crushing the States for reasons (including constitutional ones) that I’ll explore in another post.

If eg workchoices was in fact eg global warming omnibus act and Howard was eg anyone else then I bet the current round of ‘refinements’ would be pushing interest rates off the pages as lefties lined up to praise his ‘vision’ being ‘rewarded’ with increased public support after ‘early effects’ of ‘right-wing scare campaigns’…

But when it suits, the old ‘poll-driven’ tag still rolls out seemingly brand-new.

Hawke used the power to block the Tasmanian Dam, but then resiled from using it to overrule the Bjelke-Petersen government on preserving the far north wet tropics until it became clear that the political auguries were favourable for such a move. There were a (very) few subsequent instances of Federal Labor governments invoking it against rogue States (e.g. to preserve Tasmanian forests in 1988 and to block the Port Hinchinbrook development in Queensland in 1994), but there were also examples where the power could have been invoked but wasn’t (e.g. the Tarkine wilderness dispute in 1995-96). The Federal Labor government’s most significant decision by far in this connection was its Inter-Governmental Agreement on the Environment with the States in 1992, which explicitly renounced the unilateral assertion of Federal authority in relation to a raft of issues on which the Constitutional power of the Feds had been established by earlier court cases.

Vee is also basically right that the Court ‘is not that interested in the effects of the law, just whether its valid or not‘.

For some of us that is basically the definition of the judicial function.

Finally, for all those Labor-leaning pundits who are no doubt busily crafting articles claiming that the Howard government is the most centralist in Australia’s history, it just isn’t true. The Keating, Hawke and Whtilam governments were equally centralist, although they tended mostly to prefer using the external affairs power and international treaties to whittle down state power, and the ends to which their centralism was directed were very different.

But whether the Howard government is subjectively less or more centralist than previous Labor governments is not really the main issue. What is is whether or not the use of the Corporations power in this case, and its validation by the High Court decision, enables a far greater extension of Commonwealth power vis-a-vis the States than did the External Affairs power in the 1980s. In the early 1990s it was the view of some prominent environmental lawyers, and peak environmental organisations, that the Commonwealth could have, and should have, utilised the Corporations power to assert a far more far-reaching control over environmental policymaking at the expense of the States than the External Affairs power (as interpreted in the Tasmanian Dams and subsequent cases) made possible. Their view was that the Corporations power could enable a near-total Federal takeover of environmental policy.

I understand that High Court Justices swap their draft judgments between themselves, so that you often see one Justice’s reasons referring to and taking issue with points made in other Justices’ opinion/reasons. Moreover, clearly sometimes Justices caucus and discover sufficient common opinion to put their names to a joint judgment (as here). In that case the joint judgment will often be predominantly the work of one of those Justices, although that is never openly revealed. High Court Justices generally don’t comment publicly on the inner workings of the Court, and it’s also considered poor form (and a serious breach of confidence) for an ex-Associate to do so.

For someone that has only paid attention to politics for the last few years no wonder society is so apathetic, the correct decision is rarely made. There’s always someone that makes life harder. Isn’t it hard enough all ready?

I acknowledge that there is not always a correct decision but it is relatively clear that the High Court only cares about the Commonwealth and centralising everything. Once upon a time we called that Communism. The High Court is not that interested in the effects of the law, just whether its valid or not. That is not justice.