The American innovation on English Constitutionalism was that there is fundamental law – expressed in the constitution – that cannot be ignored by the executive and cannot be statutorily pasted over by the legislative. The Americans called them natural rights and entrenched those political rights in their federal and state constitutions.

Where an English judicial had to be activist, the American judicature could be constructionist. The English judicial established Habeas Corpus as accepted practice through activism two hundred years before it was legislated in 1679. The American judicial had a series of ongoing and increasing ‘rights’ laid out in fundamental law for them to protect from executive and legislative over-reach.

Australia, despite having 130 years to digest and deliberate on the American innovation, did it half-arsed. Ingliss-Clark had a bill of rights in the first draft of his Washminster constitution, but this was taken out apart from a protection for religious freedom. Consequently the constitution has not been able to inform judicial doctrine like it has in the United States. So we get a half-arsed and often seemingly arbitrary judicial doctrine that gives tips of the hats to the English style of executive/legislative dominance and at other times the American style of fundamental law.

In the past the High Court has adopted the American style and argued that political speech is protected as fundamental law as the constitution is a democratic one and without freedom of political speech the constitution is non-functioning. However;

THE High Court today overturned changes to federal government legislation made last year which bars prison inmates from voting. However, the court upheld earlier legislation which stipulated any prisoners serving a jail term of three years or longer could not vote.

Is enfranchisement protected as fundamental law or not? By that ruling it kinda is and kinda isn’t. That is half-arsed and goes back to the basic problem with the Australian Constitution. It is not one or the other. Is it based on English Constitutionalism or American Constitutionalism? It is not an Australian innovation, so it can’t be that. Civics matter and our constitution is a half-arsed mess by bearded men that were incurious to constitutional philosophy.

Fortunately it is an easy fix. A constitutionally entrenched Bill of Rights would stop this judicial doctrine confusion.

Politics is all about compromise and trade-offs. Sensible politicians target the median voter not the extremists on either side. On that test, Labors IR package seems to get it about right. Moreover the proposed changes are transparent for all to see and contain a lot more detail than Mr. Howard ever put to the people prior to the last election.

In my view, the revised IR package allows for considerable flexibility and its core is enterprise bargaining. It should ease the legitimate concerns of labour economists about potential job losses, inflation and interest rates. In fact, there is likely to be little economic impact from these reforms – even using the Econtech model much favoured by ACCI and the Government (see my earlier posting and addendum).

And the Rudd package reassures business that under Labor it will not be exposed to union bullies. In fact, trade unions will clearly be much less potent under Rudd than they were even under Keating.

Nonetheless, and not surprisingly, the announcement by Rudd and Gillard is being greeted with strong criticisms from both sides of the spectrum.

I glanced this morning at the Kevin07 web site and it is clear that the Rudd/Gillard IR package has been very badly received by left wing critics. They believe that Rudd has now swung the balance too far back to employers and betrayed workers. Many are threatening to vote for the Greens.

These critics forget that Rudd is offering a stronger worker protection safety net for low paid workers, more scope for collective bargaining, an independent arbiter and unfair dismissals laws. On the conventional Left wing views of fairness, it is surely a much fairer system than WorkChoices.

Critics on the Right who want to retain and even radicalize WorkChoices are adopting a different line of attack. They claim that Rudd has not gone far enough with his concessions and that trade unions will be sure to pressure a future Labor Government into giving them even more freedom. This may well happen but there is nothing in the recent history of Labor governments to suggest that a Rudd government will not be able to stand up to them on fundamentals.

Moreover the tables can be turned on these right-wing critics by pointing to comments by Peter Hendy (of the Australian Chamber of Commerce and Industry) on 29 May 2007 that “the new fairness test is unnecessary” and that the new system will have to be monitored” as “it definitely means more red tape for business (ACCI transcript). This suggests that the ACCI will be pressuring a re-elected Howard Government to retreat from the fairness test.

I doubt that business will succeed in getting its way under a Howard government but the risk is surely as great as the risk of a Rudd government succumbing to union pressure.