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Analysts discuss High Court decision on WorkChoices legislation.

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Wednesday 15 November 2006

Analysts discuss High Court decision on WorkChoices legislation


PETER CAVE: Industrial relations lawyers, academics and politicians have had well over 24 hours no w to fully digest yesterday's High Court decision regarding WorkChoices and the Constitution's corporations powers. 


While the Federal Government continues to reject the possibility of a takeover of state responsibilities, many legal experts say the possibilities are endless. 


According to one academic, this could include regulating electricity companies, childcare centres, universities and even private schools. 


Alison Caldwell reports.  


ALISON CALDWELL: The Treasurer Peter Costello began the day on Southern Cross Radio in Melbourne assuring listeners they had nothing to worry about when it comes to the Federal Government and its new corporations powers. 


PETER COSTELLO: To say that because of that decision somehow this destroys federalism as we know it is not right. It's a limited power, it's in relation to corporations. I think the High Court got it right.  


ALISON CALDWELL: The Constitution's corporations powers, as defined by the High Court, relates to trading corporations, financial corporations and foreign corporations. 


So what exactly is a trading corporation? 


The list is endless, according to former Treasury Secretary and co-founder of the Samuel Griffiths Society, John Stone. 


JOHN STONE: Obviously a trading corporation is a corporation which engages in trade, that is to say, sells or buys goods or services. 


ALISON CALDWELL: Well, that can be pretty much anything - universities… 


JOHN STONE: Well, our universities, for example, I think are trading corporations. They sell educational services. 


ALISON CALDWELL: Childcare centres? 


JOHN STONE: Childcare centres, most of them are privately owned and operated, and most of them are incorporated, I feel sure. The list is almost endless, because, you see, the decision of the Court concerns the relationship between a corporation and its employees.  


And as long as we're talking about a corporation, this decision now gives the Commonwealth Government the power to in effect intervene in any aspect of a corporation's activities. 


Governments given powers exercise them. 


ALISON CALDWELL: But the Treasurer Peter Costello denies the Commonwealth has any interest in taking over areas of state responsibility. 


PETER COSTELLO: Education is not delivered by corporations. You've only got power to legislate in respect of corporations. Now, the Victorian Education Department, for example, is not a corporation. 


So I don't see that this would enable a takeover of education or health. They are traditional state areas. 


But the Commonwealth does have power in relation to corporations, and to set a system of industrial relations that corporations can apply on a national basis, I think is actually good for the national economy. 


ALISON CALDWELL: In education, private universities are incorporated. So are many private schools. And in health, many private health clinics are also incorporated. Previously state-owned gas and electricity companies have also been incorporated. 


Graeme Orr is an Associate Professor in Labour and Constitutional Law at Griffith University. He says the possibilities for Federal Government interference in these areas are endless. 


GRAEME ORR: The Commonwealth already has significant power over the universities, because they provide about 50 per cent of our budget. So they can make the puppet dance through threats to withdraw money or offers of new money. 


But universities have been held to be trading corporations so they could also probably micro-manage our internal affairs through the corporations power. 


ALISON CALDWELL: What they do could be influenced by governments, couldn't it, as a result of this decision? 


GRAEME ORR: Yeah, directly legislated for or through regulations, the minister could be given power. 


For example, childcare centres is the one area of education which is largely run by corporations, you know, small childcare centres are incorporated. 


So the Government could directly regulate, for example, to make childcare centres sing the national anthem every day, or have quotas of male teachers. That sort of thing is quite possible after this judgment. 


ALISON CALDWELL: What about power utilities, energy or water? 


GRAEME ORR: Well, that would depend on their status as trading corporations. But since of most of them wholesale and retail power, and they're incorporated, because that's been the trend for state governments, to incorporate their agencies and businesses, then it's quite possible that the Government could regulate them, not necessarily completely take over the energy sphere, but to regulate to require them to source so much power from nuclear power, or renewables, or whatever. I'm sure that there are people in the Government thinking about that possibility. 


ALISON CALDWELL: A number of different ministers have said today, look, we don't see this as a green light to do whatever we want. Does that mean that we shouldn't really worry about it? 


GRAEME ORR: Well, they may not want to sort of create a spectre of being power-hungry, but it's unusual to find a power that doesn't get used eventually, and the Government will presumably be taking policies, or if it's re-elected, be considering areas of fresh regulation after the next election. 


I think it's just too politically sensitive at the moment for them to be seen to be taking over too much. 


PETER CAVE: Associate Professor in Labour and Constitutional Law at Griffith University, Graeme Orr. He speaking to Alison Caldwell.