Howard Government Research Articles

Industrial Legislation in 2007

The Howard government's draconian Work Choices laws will soon be history. A change of government at the 2007 federal election means that Australian industrial relations legislation will continue to be a turbulent field, for some time yet. This review provides an account of the last piece of industrial legislation passed by the Howard government, to introduce a `Fairness Test' in an attempt to ameliorate public concern about the patent unfairness of some aspects of the Work Choices laws. The same Act made some changes to the way in which `prohibited content' is regulated in workplace agreements. We also provide a brief summary of some of the more significant State manoeuvres in what remains to them of the field of industrial relations law.

Equal

Equal

Australian Unions in 2007

Australian unions will remember 2007 as the year that their `Your Rights at Work' campaign contributed to the defeat of the Coalition Government. Industrial relations dominated the election campaign and remained at the centre of public policy and media debates throughout the year. Employers used the Howard government's Work Choices legislation to refuse to bargain with unions and to prevent lawful industrial action. Union officials and members were prosecuted for unlawful industrial action. In response, unions conducted a highly resourced and professional campaign aimed at changing the government and repealing Work Choices. However, the Australian Labor Party under new leader Kevin Rudd announced it would keep certain contentious aspects of Work Choices. Notwithstanding the defeat of the Coalition, barriers remain to unions' future growth and strength.

Employer Matters in 2007

The year 2007 may well be remembered as one being short on major industrial disputation, yet one where industrial relations itself dominated public discussion and political life of the country like no other time in Australia's history. It was a year dominated by the electoral cycle, with both organized labour as well as major employers playing their cards very carefully, lest they provide political ammunition to their political and industrial opponents. Thanks largely to the effectiveness of the union movement's anti Work Choices campaign, major employer groups and their political allies the Howard government found themselves fighting a rearguard, and ultimately losing, battle, valiantly trying to defend the Work Choices regime. At year's end, the Liberal government had lost office, Prime Minister John Howard had lost his own seat in Parliament, and the Rudd Labor Government had been swept to power with a clear mandate to dismantle the Work Choices regime. Yet despite this conclusion to a year dominated by debate over industrial relations, it seems that employers had nevertheless lobbied Labor party leaders successfully enough to secure the continuation of many key components of the former Howard government's industrial relations regime.

THE HOWARD‐TURNBULL NATIONAL PLAN FOR WATER SECURITY OF JANUARY 2007: RESCUE OR REJECTION?

A ten‐point, ten‐year, ten billion dollar National Plan for Water Security was announced by the (then) Howard Government in January 2007. The Plan was supported by State governments, with the exception of Victoria. The (then) Opposition supported legislation in August 2007 to implement the Plan. The main part of the Plan was investment in off‐farm and on‐farm irrigation infrastructure, ostensibly to promote water use efficiency. A smaller programme was proposed for buyback of irrigation water for environmental purposes. Various economic criteria would favour the opposite emphasis. Investment by governments in private irrigation infrastructure goes against the spirit of other recent policy changes and, for economic and technical reasons, is unlikely to achieve its objectives. Buyback for environmental purposes should continue, subject to appropriate procedures and discipline in the selection of environmental projects. Recent developments highlight continuing controversies over policy and administration of the Murray‐Darling Basin.

The Heterogenous Citizen: How Many of Us Care about Don Bradman’s Average?

The Heterogenous Citizen: How Many of Us Care about Don Bradman’s Average?

Politics and Policy-making for Asia Literacy: The Rudd Report and a National Strategy in Australian Education

This article traces the origins and policy processes of the first national attempt to establish the study of Asian languages and cultures in the Australian education system. Asian Languages and Australia's Economic Future (1994), referred to as the Rudd Report, after the Chair of the Working Group that produced it, was commissioned by the Council of Australian Governments (COAG) in December 1992 to develop a strategic framework for the implementation of an Asian languages and cultures program in Australian schools. The Report’s aetiology stemmed from a Languages other than English (LOTE) initiative of the Goss Government in Queensland and was presented to the first COAG meeting as a model for what might be achieved at the national level in Australia at a time when the federal Labor Government mounted a broader policy push for national capacity building and engagement with Asia. This intersection of interests achieved what a succession of policy documents since 1969 had been unable to attain - political agreement at federal and state levels in Australia - for a national policy prescription for Asian languages and studies. The Rudd Report marked a significant juncture for Australia as it emphasised that second language provision has domestic as well as external considerations and that both were linked to Australia's geopolitical future in the Asian region. This paper argues that the decision-making processes which produced the Report and its implementation as the National Asian Languages and Studies in Australian Schools (NALSAS) Strategy in 1995, can be analysed from the policy literature to cast light on the nature of cooperative federalism in Australia. It also argues that Rudd's role as the principal architect and key protagonist of the report drew on the ideology of economic rationalism and the role of the rational policy actor. Yet despite this policy achievement and signs that this long term strategy was taking effect, in 2002 the Howard Government cut the Commonwealth's funding commitment and undermined Australia's first experiment in prioritising Asian languages and cultures in the knowledge economy.

From ‘harm minimization’ to ‘zero tolerance’ drugs policy in Australia: how the Howard government changed its mind

This article utilizes a case study of Australian drug policy under the Howard Federal Government to demonstrate the value of discourse theory for policy studies. Particular attention is given to the role of metaphor and Lakoff's work on moral politics to examine how the problem of illicit drugs was framed as a prelude to the implementation of a ‘zero tolerance’ drug policy. Policy documents are analysed to show how language is deeply political and integral to the shaping of the policy agenda. Thus, rather than seeing policy-making as a straightforward process whereby policy-makers come to know about the social problems or the natural world empirically, the approach used in this article indicates the value in investigating the generative role of language and how that informs policy. In short, this article analyses how language and particular frameworks are used in policy-making communities to persuade various audiences to see ‘the drug problem’ in a particular way and to encourage support for a particular course of action.

The Impact of `Work Choices' on Women in Low Paid Employment in Australia: A Qualitative Analysis

This article summarizes the effects of the Howard Government's `Work Choices' amendments to the Workplace Relations Act 1996, based on qualitative analysis of its impact on 121 low paid women workers. The main effects of the regulatory changes are on job security, income, voice, working time and redundancy pay. The analysis draws attention to the nexus between protection from unfair dismissal and security of working time and employee voice: many of those interviewed in the study had lost access to protection from unfair dismissal and as a consequence could no longer effectively influence their working hours, or request flexibility. Employer prerogative was perceived to have strengthened in many of their workplaces, with consequences for the intensity of work. The analysis suggests that improvements in minimum standards and job security are vital if low paid workers like those included in the study are to exercise voice over working time and avoid significant deteriorations in their pay and conditions.

The Sinking of the Strait: The Implications of Climate Change for Torres Strait Islanders' Human Rights Protected by the ICCPR

This honours paper was supervised by Prof. Don Rothwell. The Torres Strait Islands is among the most vulnerable regions to climate change in Australia. This paper examines the implications of climate change for Torres Strait Islanders' human rights protected by the International Covenant on Civil and Political Rights (ICCPR). A key purpose is to assess the viability of a complaint being made to the United Nations Human Rights Committee under the ICCPR Optional Protocol, contending that Australia's failure to adopt sufficient measures to reduce greenhouse gas emissions constitutes a violation of Islanders' Covenant rights. Written in the lead-up to the 2007 federal election, the paper is primarily concerned with the actions of the Howard Government, but also considers the implications of federal Labor's pre-election policies. It is concluded that whilst a claim by Islanders' would have compelling legal merit, complex issues such as causation and standing mean that it is unclear how the Committee would ultimately determine the case.

Remaking Industrial Relations in Australia

Following the 24 November 2007 Federal election, the Rudd Labor Government began work on its promises to re-shape Australia's industrial relations system. Industrial relations had been a central issue--many thought the central issue--in that electoral campaign. The Howard Liberal-National Coalition Government went to the polls some two years after enactment of its highly controversial Workplace Relations Amendment (WorkChoices) Act 2005. Despite the Howard Government's best efforts--via legislative amendment, enormous public spending on pro-WorkChoices advertising and the corralling of employer associations into publicity campaigns in defence of WorkChoices--the clear anti-employee bias of the new industrial relations regime rendered WorkChoices increasingly unpopular. It cost the Coalition the government benches, Howard his electoral seat and the Coalition parties their ability to commit themselves--at least in the short term--to the sorts of employer-focused, individualised industrial relations that they had championed for the previous two decades. The most potent symbol of this trend was the introduction (in 1996) of individual statutory agreements--Australian Workplace Agreements (AWAs)--to override awards and collective agreements. The 2005 WorkChoices amendments further encouraged employers to use AWAs to erode collectively bargained conditions, by allowing the making of AWAs without any 'no-disadvantage' test, and with fewer procedural requirements. A particularly effective media and community organising campaign by the union movement against WorkChoices had harnessed voter support for Labor's wider policy agenda in support of 'working families'. So unpopular was WorkChoices and so central was its unpopularity to Labor's successful electoral campaign, that the new government appears to have had no option but to engage with industrial relations legislative reform as an important, early part of its legislative agenda. These particular circumstances have opened up a series of questions of fundamental significance for the future of Australia's industrial relations, its institutions, labour market and society. Whatever the Rudd government finally decides (and what the parliament with its 'hung' senate finally allows) is of potentially immense historic importance. This moment comes after nearly two decades of employer association activism that has successfully influenced governments of both persuasions in favour of a national industrial relations system far more decentralised and much more focused on the wants of individual employers. During the last 11 years too, unions have faced marginalisation and de-legitimation through policy, law and official discourse. The not unexpected outcomes include an industrial relations reality that is far more individualised, unprotected and insecure for large sections of the workforce. In broad terms, these are some of the experiences and trends that the Australian electorate voted against. So, where will the legislative process go now? The Rudd Government's first step in dismantling aspects of the WorkChoices framework was the enactment of the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Transition Act). The Transition Act delivered on a promise to prohibit the making of new AWAs, however it did not deal with many other contentious matters, including unfair dismissal laws. Through the government's policy statements and other media releases, we know something--but by no means all--of what further changes the new government plans to make. Some aspects of WorkChoices, such as reliance on a legislated safety net of minimum employment conditions, will clearly stay; however, other matters are still open to consultation and debate among newly-formed consultative bodies as well as among traditional employer associations, trade unions and other lobby groups. In that context, it is timely to review the state of industrial relations law and policy in Australia. …

Re-imagining the Role of Trade Unions after WorkChoices

No system where interests collide can proceed without a means to break deadlocks or redress major asymmetry of market power.--(Gardner 2008: 40) A focus on asymmetry of market power emerges as a central theme within three of the four plenary papers examining the future shape of Australia's federal industrial relations system. Gardner, Hancock and McCallum all affirm the inherent power imbalance existing in the common law employment contract as a continued justification for regulation in the arena of industrial relations. Yet, imbalance of power is not unique to the employment relationship, (2) a factor which has contributed to many commentators seeking a broader regulatory justification for intervention. (3) This approach is not incompatible with recognition of the existence and effect of power imbalance in the context of employment and the role of regulation in correcting power imbalance. It does, however, seek to establish a broader justificatory basis for the regulation of work, a project which may help the discipline of labour law move beyond the contract of employment as the locus of regulation. The rationale behind the impetus to extend the principles underpinning labour regulation clearly emerges in the acknowledgement made in each of the plenary papers of the declining role of trade unions and strike action within the modern federal industrial relations system. If collectivism is in decline, alternate methods of regulating the relationship of employees and employers should be adopted. This discussion will consider two of the central themes emerging from the plenary papers: power imbalance; and the impact of the shift in regulating trade unions as representatives of workers generally in favour of the regulation of trade unions as representatives or agents of individual union members. Gardner suggests that the causes of the declining influence of trade unions in Australia have been misrepresented as social rather than legal. Commenting on the impact of the amendments made to the federal legislation by the Keating Government in 1993 and the Howard Government in 1996, Gardner observes that 'the diminution of collective representation and influence looked like a societal change not a legislatively induced one'. The discussion will consider the ongoing role of trade unions and collective action within the Australian industrial relations framework in light of the history of industrial relations in Australia and the pessimistic assessment of the future of collective representation that emerges within some of the plenary papers. For example, Hancock argues that '[i]t may well be unrealistic to expect the unions to turn around the secular decline in their penetration of the work force'. However I believe this focus on the decline in union density is unhelpful in the Australian context. It is possible to imagine a rejuvenated role for trade unions as representatives of workers generally if we consider the role of unions in Australia within their historical context. In his plenary paper, McCallum reminds us of the origins of employment regulation and the transformation of the master and servant relationship from service to contract at the time of the industrial revolution. McCallum emphasises that the contractual relationship is characterised by command and obedience, wherein the employee submits to the control of the employer in return for payment. The underlying capital and managerial power of the employer is reinforced at common law by the terms of the contractual bargain which require the employee to obey lawful and reasonable commands, upon threat of summary termination. This emphasis on the contractual basis of the individual employment relationship serves to illustrate the inadequacy of the common law to redress the unequal position of an individual employee against the pre-existing capital power of the employer. It is also a useful tool for teaching students who have never studied industrial relations or labour law. …

WorkChoices and Independent Contractors: The Revolution That Never Happened

The contributions that form the centrepiece of this special edition, from Margaret Gardner, Keith Hancock, John Niland and Ron McCallum, offer diverse insights both as to the policy debates that have shaped Australian workplace relations over the past 25 years, and as to the opportunities and challenges that now confront the Rudd Government. But one feature they share is that they have virtually nothing to say about the regulation of work performed outside the confines of the traditional employment relationship. Their focus is unremittingly on employers and employees. From one point of view, this might seem odd. The 'increasing scope of atypical employment arrangements' to which Margaret Gardner alludes has not just been about employees working part-time, or as casuals, or on fixed term contracts, or away from a traditional workplace. It includes a large number of workers who provide their personal labour as 'self-employed' contractors, rather than as employees in the common law sense (Productivity Commission 2006). There has also been a burgeoning awareness, at least in the labour law literature, of the regulatory challenges posed by forms of work that fall outside the conventional categories of employee and contractor, whether performed by volunteers, franchisees, social security recipients, prisoners, and so on (Gahan 2003; O'Donnell and Mitchell 2006). Yet the focus of the plenary papers is in another sense entirely justified. The progressive waves of reform that occurred in 1993, 1996 and 2005, as well as the Rudd Government's recently enacted 'transitional' legislation, (1) have all involved amendments to a federal statute whose application remains anchored to the common law conception of a contract of service. (2) Federal awards and workplace agreements can generally deal only with the terms on which employees are engaged. The growing list of minimum entitlements directly established by what is now the Workplace Relations Act 1996 (WR Act) likewise apply only for the benefit of employees. And while registered trade unions are permitted to have independent contractors or other non-employees as members, at least in certain circumstances, (3) the various rights granted to unions under the Act--to enter workplaces, to enforce compliance with industrial instruments, to organise protected industrial action, to appear in tribunal proceedings--have little application to those members. In the same vein, the public debates and advertising wars that surrounded the Howard Government's contentious 'WorkChoices' reforms were conducted almost entirely by reference to the position of employees. And in responding to those debates, the federal ALP's 'Forward with Fairness' policies were likewise framed in terms of restoring 'balance' to the treatment of employers and employees (Rudd and Gillard 2007a, 2007b). They have nothing at all to say about contractors or other non-employees. What Might Have Been But it could easily have been different. In the lead-up to the 2004 election, the Coalition promised to 'legislate to protect and enhance the freedom to contract and to encourage independent contracting as a wholly legitimate form of work' (Liberal and National Parties 2004: 3). For a time, it seemed that what John Howard had in mind was a two-pronged approach to labour market deregulation. Businesses who wanted to escape the 'rigidities' of the award system, not to mention the inconvenience of having to deal with unions, would be given a choice of how to do that. They might use statutory individual agreements to strip away award entitlements and block union representation, either with or without any compensating wage increase. Or, more radically, they might take a worker right outside the scope not just of the award system, but of the various minimum standards set by the WR Act for employees, by the simple expedient of hiring them under a contract that described them as self-employed. Whether or not that was the intent behind the 2004 policy, however, it is not what eventuated. …

Kyoto is Dead, Long Live Kyoto! A New Era for International Climate Change Law

As the implications of anthropogenic climate change are better understood the pressure builds for more effective legal and policy responses at national and international levels. With climate change looming as an existential threat, climate change law ought not to be characterised merely as a subset of an environmental law designed to reconcile ecological and developmental imperatives in search of the amorphous objective of sustainable development. Instead it should properly be seen as a frontline defender of the social, economic and ecological foundations upon which the rule of law is built. Against the backdrop of improved climate science concerning the temperature threshold beyond which there will be dangerous interference with the climate system, and the carbon reduction pathways to avoid this tipping-point, this paper takes stock of developments in international climate change law in the lead up to the conference and meeting of the parties to UNFCCC and Kyoto in Bali in December; a meeting that will mark 10 years since Kyoto was concluded. While recognising the limitations of the Kyoto Protocol, this paper defends the Kyoto approach against concerted efforts by the Howard Government in Australia and the Bush Administration in the United States to undermine a climate change regime enshrining binding targets and timetables for reducing emissions. It argues that rolling over Kyoto into second and subsequent commitment periods for emissions reductions by developed (and ultimately developing) countries would be an appropriate combination of pragmatism and principle in the pursuit of the rule of law in international climate policy.

‘Ding dong the witch is dead!’ the demise of the research quality framework

‘Ding dong the witch is dead!’ the demise of the research quality framework

Asia´ s Competitive “ Strategic Geometries” : The Australian Perspective

World politics is ultimately determined by landmark changes in state-centric power configurations and the contemporary international security environment is proving to be no exception. (2) Europe, the Middle East and Asia collectively form the vortex of geopolitical rivalry in our time and the United States, the hyper-power, whose strategic commitments dominate and whose resource needs bestride all three regions, is increasingly strained to project effective control over how these regions will shape the evolution of international security. This is particularly true as the forces of globalization become more complex and as the scope of security policy concerns broadens. In such an environment post-war US allies like Australia are challenged with how to determine whether their own national security interests and policies correspond with or diverge from American expectations and demands. In this context, Australia stands at a historical crossroads. For nearly eighty years after Federation in 1901, that country pursued an unmitigated strategy of alliance politics, relying initially upon its erstwhile colonial power, Great Britain, and since 1942 upon the United States for protection and, ultimately, for survival against real or potential regional predators. Over the last twenty to thirty years, however, Australia has pursued a more complex, dual track, strategy to guarantee its security and prosperity. The two main elements comprising this strategy are: (1) a comprehensive regional engagement with its Asian neighbours, designed to pursue community-building and avoid security dilemmas, complemented by (2) a continuation and, most recently, an intensification of its alliance with the United States? This approach was perhaps most graphically characterized by then Prime Minister John Howard in a wide-ranging speech delivered in August 2001 when he insisted that: ...it (is) not necessary [for Australia] to choose between our relationships with Asian countries, and those in Europe and North America--to choose between our history and our geography. (4) In retrospect, the formula of pursuing politico-strategic equilibrium --build(ing) and maintain(lug) links with all the major centres of global power and influence, while ensuring that [Australia's] key regional relationships were kept vibrant and strong can be viewed as successful? Over the past decade, Australia's economy grew steadily through its cultivation of an insatiable China market and preservation of viable trading and investment relationships with more traditional Asian economic partners (particularly Japan and South Korea). It simultaneously entered into a comprehensive free trade agreement with the United States, strengthened its access to US defence intelligence and weapons technology and intensified its diplomatic profile with US officials. (6) While Australia's military involvement in Iraq has been undoubtedly controversial, its casualties among defence personnel serving in that war-torn land have been remarkably light to date. The newly elected Rudd government pledged throughout the late 2007 federal election campaign that it would remove all Australian combat forces from that theatre. He was careful, however, to qualify this declaration with the caveat that the US would be fully consulted prior to withdrawing what is, in fact, a very modest number (around 550) of Australian combat forces. Nearly 1,000 Australian military personnel would remain stationed in Iraq, however, to carry out naval missions, help train the Iraqi army and to provide other forms of logistical support for remaining coalition (mostly US) forces deployed there. (7) Adopting a fundamentally balanced or symmetrical approach to geopolitics has therefore served Australia very well during the twenty-first century's first decade. Given the success it has had in adopting geopolitical symmetry as a core part of its overall security posture, it is puzzling that a countervailing policy trend emerged during the Howard government's last three to four years of office that signalled a return to Australia's unqualified strategic reliance on its great and powerful American friend. …

The Heterogenous Citizen

The Heterogenous Citizen

Vote / Citizen

Vote / Citizen

Vote / Citizen

Vote / Citizen

Older workers in Australia: The myths, the realities and the battle over workforce ‘flexibility’

AbstractA decisive 2004 fourth term win for the Howard Government and control over the Senate provided the Australian government with a mandate to further deregulate the labour market in the name of ‘flexibility’. This paper uses a critical perspective to challenge the wisdom of neo-liberal market economics as the driving force behind the rapid expansion of non-traditional ‘flexible’ forms of work and the persistence of a deficit model/perspective that continues to devalue the human capital value of older workers. It is argued that these trends will contribute to ongoing under utilisation of ‘older’ labour and intensification of skill shortages, in part, as a result of lack of investment in maintaining human capital. In responding to Australia's rapidly ageing workforce the Howard Government has adopted modest measures designed to counter age based discrimination and encourage workforce participation. However, participation rates among older workers in Australia have remained one of the lowest among Organisation for Economic Co-Operation and Development (OECD) countries. This paper argues that the Government's labour market deregulation policies are reducing the availability of jobs that provide sufficient working conditions and remuneration to make workforce participation attractive. The erosion of employment conditions associated with ‘flexible’ workforce reform leads to underemployment, an employment outcome that often fails to meet the needs of many older workers. More recently, however, the Government has embarked on reforms that appear to provide genuine incentives aimed specifically at attracting workforce participation by older workers, but unfortunately these are by and large confined to those aged 60 years and over.