Legislative Arm: Explicit vs Implicit
Posted by Cam on Sunday, December 3, 2006
The December 1st Senate Hansard had an interesting exchange during the debate over the Independent Contractors amendment to the behemoth Workchoices legislation. First Andrew Murray;
As the chamber knows, various state legislatures have attempted to grapple with this but at the federal level the common-law provisions continue to prevail. Indeed, the bill only includes a very minimal definition of an independent contractor. Instead it defers to the common-law definition, which in any case is subject to change over time as jurisprudence advances. Many, including the Democrats, believe relying on the common-law definition of employment is fraught with the problems.
Murray mentions that the common-law version of independent contractor has no real definition, it is kind of what an employee is not. It is also malleable; meaning that the judicial of the time can interpret what an independent contractor is depending on the current accepted meaning is. So at any one moment the definition may change depending on the current Judicial view of the definition. Gavin Marshall listed the current tests in his speech on the issue.
Eric Abetz replied with;
More fundamentally, however, the government opposes the definition of “employee” proposed by the Democrats because that definition would include an exhaustive list of factors that point to a person being either an employee or an independent contractor. This is less flexible and narrower than the existing common-law test that allows consideration of all relevant factors and circumstances impacting upon the relationship between the parties. The government will not support amendments that reduce flexibility by departing from the long-established and well-understood common-law tests.
The choice becomes; explicit legislation where the definitions are hardened in the Senate and House (the same method the States undertook) or, implicit legislation where the courts can advance, modify or maintain the definitions.
That is more than a divergence on policy. It is a difference in the philosophy of governance.
Andrew Murray is arguing for the Legislative to be the temporal arm of government with the Judicial being the conservative body that is restricted in their decisions by explicit legislation. Eric Abetz is arguing for the Legislative as a conservative body and the Judicial to be the temporal and progressive arm of government.
This entry was posted on Sunday, December 3rd, 2006 at 10:25 AM and filed under Uncategorised.
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I don’t think that’s quite right, Cam. It’s not as though judges can’t play funny buggers with legislation. More to the point, newly-minted legislation is untried and untested.
Let me put it this way: which do you prefer, a production system written in COBOL of 30 years operation, or some hyperultraweb2.0ajax thing written entirely in Emerald or Sapphire or whatever will succeed Ruby?
The latter appeals to you and I as programmers because we like the new and clean. But the old system is not without virtue as its operational behaviour has been pretty exhaustively established and most bugs have been beaten down by the passage of time.
Until we have formal methods for legislation – as you and I have discussed on #clubtroppo a few times – then relying on the Common Law definition of things has virtue because it tends to be well-tested.
In short: if it isn’t broke …
Posted on 03-Dec-06 at 10:37 am | PermalinkJacques; We aren’t in 1902 though, there is plenty of existing history and empirical situations for this legislation from the states themselves. I am not really arguing either way here anyway, I prefer Murray’s approach, but am not denying the value of common law.
Politicians are also supposed to be legislative specialists. For that reason the temporal nature of governance should be in the legislative body with the judicial being the conservative body. The volatile component of government is by description the legislative body. The conservative components who are far more restrained by constitutional and judicial precedent are the executive and judicial.
Progressive government should occur in the legislative, not the judicial or executive.
Posted on 03-Dec-06 at 10:44 am | PermalinkI’m not sure if “recreating common law” is progressive.
Generally I do prefer clear legislation over the spaghetti code mire of common law, but often old spaghetti code is covering all the corner cases. That’s one of the strengths of the common law: through sheer bloody longevity a lot of odd exceptions have been settled.
So I guess it’s a question of trading off between proven qualities and refactoring? I think we should push at this question more.
Posted on 03-Dec-06 at 10:52 am | PermalinkIn this instance because the feds have taken the responsibility from the states there is a history there of the states grappling with the issues including explicit legislation vs common law. The grab by the feds is refactoring of an existing decentralised industrial relations system. It is re-regulation through centralisation.
Apparently in the committee hearings a specialist argued that common law definition was insufficient. Marshall argued that they were sufficiently complex that outcomes were difficult to determine. One of the points of explicit legislation is to make the legal future more certain in the areas of regulation and oversight.
This is from Marshall’s speech;
Posted on 03-Dec-06 at 11:07 am | PermalinkPreventing definitions of contractor is actually part of a long-standing agenda by the labour hire industry, preventing casual workers from using the industrial relations system to seek legal redress. It means casual workers would need to undertake much more expensive action in commercial law.
Mallesons, in a review, points out that:
From 2000 to 2004 the labour hire industry had become increasingly concerned that state governments were interpreting labour hire as disguised employment arrangements. There were several test cases, such as that of Oanh Nguyen, a factory worker sacked after becoming pregant. The factory and labour hire firm disingenuously argued that Nguyen had not really been sacked as she was still on the books of the labour hire firm, albeit not being paid.
Similarly, when the South Australian government tried to fix rorts in labour hire in 2004, the IT recruiting lobby group ITCRA complained that:
Fortunately for these poor dears, Howard won the Senate in the 2004 election, and they then proceeded to create their idealised labour hire system for Australia, enshrined in Workchoices and the Independent Contractors Bill. As intended, casual workers have no rights and the fictions of independent contracting are preserved.
Posted on 03-Dec-06 at 1:24 pm | PermalinkIC legislation that leaves it to common law judges to determine whether some poor sod has any entitlements accruing under a contract of service, as opposed to being deemed to be supplying services for payment is straight back to the 19th century. It’s funny isn’t it, how no-one would put up with banking arrangements or consumer protection or education curriculum modelled on 19th century concepts and understandings but when it comes to people’s labour, any old piece of muck will do.
I guess because people who like to talk and write imagine they will never be in any of the jobs that these bottom feeders live on.
The labour hire industry is overripe for some severe inquiry. It is money for old rope, it contributes nothing, is accountable to no-one, and does nothing that a decent employment regime plus real time employment info could do instead.
Posted on 04-Dec-06 at 3:28 pm | Permalink