The Australian Labor Party (ALP) has, either in government or opposition, sponsored and/or supported eight attempts to widen the industrial relations legislative powers of the federal parliament (see Table 1). Of these attempts only the 1946 referendum attracted majority national support, but failed to be carried because it lacked majorities in three States. Craven argues the federal parliament's conciliation and arbitration law making power, section 51 (35) of the Australian Constitution, 'has proved grossly insufficient to meet ambitions of the Commonwealth' and the defeat of repeated attempts to alter the Constitution by referenda to give the federal parliament additional powers 'in respect of industrial relations' has 'persuaded the Commonwealth that pursing its aims by democratic referendum is futile'. The use of the corporations power of the Constitution, section 51 (20), by the Howard government to expand its regulation of industrial relations has been endorsed by the High Court of Australia as a valid exercise of Commonwealth law making powers. This outcome, Craven argues, means that the concept of 'federalism' no longer enjoys 'the enthusiastic support of neither major political party' in Australia.^[1]

     This paper examines the attitude of the ALP towards the federal (Commonwealth) parliament's industrial relations powers. For most of the twentieth century the party's policy called for an expansion of federal powers so that its industrial relations policies could be implemented. These efforts were, on each attempt, thwarted by a combination of electoral hostility, party disunity, and opportunistic politics of the non-ALP parties. Electoral hostility towards a centralisation of powers ­ to the determent of the States ­ can be interpreted as a community endorsement of the federal structure of the Constitution. Party disunity can be interpreted as an illustration of ALP pragmatism: when in government federally the concept of centralised law making powers is enthusiastically endorsed, but when in government at the State level the enthusiasm wanes.^[2] The tactics of the non-ALP parties can similarly be interpreted as pragmatism.^[3] The analysis suggests, however, that the ALP's attitude towards the Constitution was, and remains, more complex than simple political pragmatism. This complexity is clearly shown when non-ALP governments seek to expand federal industrial relations powers: in the abstract they should be embraced by the party but distrust of how the powers would be used augers for caution, if not direct opposition. While the history of the ALP's attitude towards an expansion of federal powers has evolved to rely more on flexible interpretation of the existing law making powers, rather than constitutional alterations via referenda, it remains to be seen how the High Court's 2006 almost limitless interpretation of the corporations power conforms with this evolutionary process with the advent of a future ALP federal government.

The ALP and 'unification'

The first Federal Parliamentary Labor Party (FPLP) caucus understood they were the elected representatives of the labour movement 'bound in a common purpose to advance the interests of workers'.^[4] Frazer suggests that as early as 1908 the FPLP was of the view that the party's industrial relations policy could only be achieved with expanded federal powers.^[5] Soon after World War I the party's federal policy platform explicitly adopted a 'unificationist' plank which called for 'Unlimited legislative powers in Australian affairs to be vested in the Commonwealth parliament'. While this policy was an assault of the federalist Constitution of 1901, it can also be seen as a response to the opposition to the implementation of ALP policies from undemocratically appointed, or property franchised, upper houses of State parliaments.^[6] The ALP's 'unification' policy was not universally endorsed by party members. John Curtin, for example, thought the ALP should abandon the policy of unification because of a potential negative impact on voters in the 'smaller' States.^[7] This plank in the party platform was removed in 1979, but 'resonances' remained until the 1990s.^[8]

     The ALP government's 1911 referendum sought to enlarge the legislative powers of the federal parliament in accordance with the FPLP platform. Non-ALP opposition to the 1911 referendum was mostly based on the threat expanded Commonwealth powers would have on the federal balance of the Constitution. Alfred Deakin, for instance, suggested the 'federal principle' would be 'vitiated once and for all',^[9] and the South Australian premier said it was an attempt to 'ringbark the Federal [sic] system of government'. The 1911 proposals were not, according to federal Attorney-General Hughes, an attempt to impose 'unification' to the detriment of the States, but rather an exercise in democratic principles: 'When we have got the power you can tell us how you want us to use it'. Despite this, the ALP government in New South Wales (NSW) campaigned against the proposals partly because it was believed (with some justification according to Hearn) the referendum proposals exceeded the ALP's federal policy platform, and partly because the powers sought would diminish NSW as a sovereign entity.^[10] The defeat of the referendum was attributed to a low voter turnout, non-Labor opposition, and perceptible disunity in the ALP. The tactic of combining all the constitutional alteration proposals in the one single question was also partly responsible because to reject one proposal meant a rejection of all the proposals.^[11] Nevertheless, Prime Minister Fisher informed the FPLP in December 1911 it was the government's intention to 'submit the Referenda proposals again' in the next session of parliament.^[12] Arguably, resubmitting the defeated 1911 proposals to coincide with the 1913 federal election, but this time as separate questions, contributed to the defeat of the Fisher government,^[13] as reluctance to endorse any proposal would induce a reluctance to endorse the return of the Fisher government.^[14]

     In 1919 the Hughes Nationalist Party government resubmitted essentially the same proposals that had been defeated in the ALP's 1911 and 1913 referenda, albeit the powers on this occasion were only of a 'temporary' character. This placed the ALP in something of a quandary: how could they oppose a referendum that sought to achieve largely the same expansion of federal powers for which they had advocated when in government, and also advanced the party's unification policy? A special federal conference, nonetheless, resolved to contest the Hughes government's referendum for the reason that it was a 'sham and delusion' because of the temporary nature of the law making powers.^[15] The Coalition government's 1926 referendum proposals divided the FPLP as some caucus members considered a centralisation of Commonwealth power to be consistent with the ALP platform, and not all that dissimilar to the ALP's proposals of 1911 and 1913. Other caucus members, however, considered the Bruce government's proposals to be a direct attack on 'Trades Unionism', and thus in opposition to the party's objectives.^[16] Due to this division within the party, the ALP federal executive resolved ­ influenced by the NSW Lang government ­ that the party had no official position regarding the referendum proposals and thus allowed party members to campaign as they wished.^[17]

     The antecedent to the Curtin government's 1944 'fourteen powers' referendum was the 1942 constitutional convention, where an expansion of federal power was considered necessary as a war-time measure.^[18] The federal Attorney-General, Dr H.V. Evatt, had portrayed the Constitution as a remnant of the 'horse-and-buggy age of social organisation',^[19] though he was not a unconditional unificationist. When on the High Court bench in the 1930s he sided with the States in constitutional cases more often than with the Commonwealth (perhaps disappointing the ALP who appointed him) largely for reasons of 'legislative efficacy' rather than any theoretical 'States rights' perspective.^[20] At the 1942 convention the six State premiers, Evatt and the deputy leader of the federal opposition agreed on the text of legislation for which each State parliament would pass before the end of January 1943 in order to refer 'fourteen powers' to the federal parliament for a period of five years under section 51 (37) of the Constitution. All the State delegates at the 1942 convention agreed to sponsor the proposed bill through their respective parliaments. However, by the federal elections of August 1943 the federal opposition urged the States to renege on the 1942 agreement. Consequently, legislation for the 'fourteen powers' referendum was introduced into federal parliament in February 1944 and passed by both Houses.^[21] The defeat of the 1944 referendum is not all that surprising as the same tactical error of 1911, grouping all the proposals into a singe question, was repeated.^[22]

     The 1946 attempt by the Chifley government was mostly a resubmission of the 1944 proposal but offered as separate questions, including the Constitution Alteration (Industrial Employment) Act 1946. In hindsight, the official publicity for the 'Yes' case had a remarkably similar tone to debates regarding the Howard government's 'Work Choices' legislation: Australia has developed industrially as a nation and most of its industries cross State boundaries; the Commonwealth's existing powers to regulate industrial employment are limited to conciliation and arbitration for the prevention and settlement of interstate industrial disputes. This illogical division, and limitations, leads to confusion, uncertainty and delays; and the system has prevented the Commonwealth from promoting better industrial relations, wages and working conditions. However, the suggestion as to how this new federal law making power would be used distinguishes the 1946 proposal from the Howard government's argument for a 'national' industrial relations system: 'the existing conciliation and arbitration power and the Arbitration Court will be retained and the activities of the court can be extended'. Likewise, the official 'No' case had a remarkably similar tone to the 2005/6 debates: the proposal is a result of pressure applied to the government.to bring an end to the existing arbitration system; this proposal seeks to give Canberra complete control over wages and conditions by abolishing the existing system of independent and impartial conciliation and arbitration which has delivered great benefits to trade unions and employers alike; and industrial justice is best achieved through the existing impartial process, rather than by politicians making arbitrary decisions.^[23] The mistake of 1911 and 1944 was not repeated, resulting in the social services proposal being carried, and the industrial relations proposal only being narrowly defeated.^[24]

Whitlam, evolution and working within the Constitution

In 1953 the newly elected ALP member of the House of Representatives E.G. Whitlam looked forward to the Commonwealth assuming responsibility for traditional State areas of activity in line with the party's unification policy: 'At best federation is a compromise, a temporary stage in our political evolution.We do not advocate centralization [sic], we advocate unification.' Four years later the title of Whitlam's 1957 Chifley Memorial Lecture explicitly demonstrated why the ALP pursued the policy of unification: The Constitution versus Labor.^[25] It was Whitlam's view that the Constitution (and High Court interpretations of it) was a barrier to the fulfilment of ALP policy.^[26] Nevertheless, the impracticalities of the unification policy were appreciated by Whitlam once FPLP leader, as he was pivotal in modifying the unification policy in the platform at the 1971 ALP National Conference in Launceston.^[27] The then unification policy stating the party would seek to 'clothe the Commonwealth Parliament with unlimited powers' was replaced with a more realistic policy of seeking to grant the federal parliament with 'such powers as necessary' to achieve the party's platform.^[28]

     In light of the revised ALP policy the Whitlam government's 1973 referendum seems perplexing. The 1973 prices and incomes proposals were neither contained in the party platform nor mentioned in Whitlam's 1972 campaign policy speech, and nor in the governor-general's speech opening the new parliament. Kelly argues that the prices and incomes referendum was 'a failed Caucus initiative, which damaged the government, forced Whitlam into a series of political contortions and strained ties with the ACTU'.^[29] The failure of the 1973 proposals did not diminish the ALP's desire for a centralisation of federal government activities because of the lack of 'dramatic new powers', as the Whitlam government made 'full use of those [powers] already available'. Whitlam himself has noted that his government's 'program of reform [was] fully capable of achievement within the Constitution' and no part of the program 'was ever invalidated by the High Court'.^[30] For example, Whitlam saw no obstacle in the Constitution preventing the federal government from coordinating, planning and financing health and education programs on a national basis.^[31]

     Constitutional alterations were first discussed by the FPLP in September 1973. The initial motion, which had been approved by Cabinet, was concerned with 'machinery of government' (e.g. the Commonwealth referring powers to the States), however a caucus amendment 'giving the Commonwealth Parliament the necessary powers to control prices' was carried by a vote of 42 for, and 38 against.^[32] At a FPLP meeting on the next day Prime Minister Whitlam moved 'that at the next sitting of the House of Representatives, we give Notice of a Bill for the Australian Parliament to control prices', and this motion was carried on voices. A constitutional alteration for power over wages or incomes only became an issue for the caucus when Democratic Labor Party senators indicted that they would only grant passage to the prices referendum legislation if it also contained a question concerning powers over incomes.^[33] Whitlam informed the caucus on 19 September that it might be necessary to 'widen the terms of the Referendum "to include wages and other forms of income"'. Immediately after the Prime Minister's report to the FPLP it was moved that the caucus reject any question for a referendum on prices and incomes. Amendments were moved to this motion to include a referendum question on power over incomes, but this proposal was narrowly defeated by a vote of 42 for, and 45 against. At a FPLP meeting a week later it was moved 'that the Party introduce a Bill to alter the Constitution so far to enable the Australian Parliament to make laws with respect to "Incomes" [sic]'. Significantly, an amendment was proposed 'that the Parliamentary Party confer with representative organisations through the CLAC [Commonwealth Labour Advisory Committee] in connection with the referendum'. The amendment was lost, while the original motion was carried with a vote of 57 for, and 25 against.

     Without the support of the union movement on the incomes power question, Whitlam acknowledged the limited chance of the referendum being carried.^[34] According to the president of the Australian Council of Trade Unions (ACTU), Bob Hawke, the incomes question was unlikely to be passed because 'People are frightened to give a Government control over wages when this power could easily lead to a wage freeze', particularly by a non-ALP federal government.^[35] Not all trade unions, however, were opposed to the incomes power question. The national secretary of Australia's largest union, the Shop Assistant's Union, was of the view that the power was needed to have control over dividends, rents, profits and professional fees. He questioned the reason why the ACTU and some unions were involved in the 'referendum argument', and suggested the stance of the ACTU was forcing unions into an 'unholy alliance' with the federal opposition parties.^[36] Bob Hawke's opposition to the incomes power question was not restricted to his involvement in the union movement. At the July 1973 ALP National Conference he had been elected national president of the party.^[37] At the ALP National Executive meeting in October he proposed an unsuccessful resolution requesting 'the party to oppose the Australian Government's referendum seeking power to control wages'. Instead the National Executive narrowly carried the resolution proposed by Whitlam and federal Attorney-General Murphy, by 10 votes to 7, endorsing the incomes question specifically stating 'that the Government would not impose a wage freeze or displace the Arbitration Commission's role in fixing wages'.^[38] Whitlam confessed that there was 'some embarrassment' due to the 'No' campaign of the unions, and even suggested the two referendum questions had been 'sabotaged' by some unions devoting more resources to defeating the incomes power question than supporting the prices power question.^[39] The ACTU Federal Executive formally endorsed a campaign against the incomes power question on 16 October because it was 'beyond ACTU policy', while it approved support for a 'Yes' vote to the prices power question. Hawke conceded that the union movement's two-faced 'yes/no' strategy and the discrepancy with the ALP's official endorsement of both questions could result in public confusion, but laid the blame for the confusion with the failure of the FPLP to consult with unions initially.^[40] This public confusion was not helped by the decision of the ALP's national campaign committee not to fund a 'Yes' campaign for either question, instead placing funding priority on the upcoming 1974 half Senate election. Consequently, the only publicity campaign on behalf on the federal government was prime ministerial television and radio appearances.^[41]

     In short, the proposed federal parliament power over prices and incomes was justified as a means to control inflation.^[42] While the government and Whitlam in particular were vague in nominating exactly how the powers would be used, some specific details were announced. The Whitlam government would use the powers to legislate for women to receive equal pay for work of equal value consistent with International Labour Organization Convention 100, authorise 'tribunals' to regulate the incomes of professionals not covered by the federal arbitration system, legislate for periodic wage increases to retain their real value, and expand the authority of the Prices Justification Tribunal.^[43] The failure of either question to gain majority electoral support, or indeed be carried in any State, was partly due to the almost comical differences between the union movement and the federal government, and the tepid support from Whitlam's ALP colleagues. According to the Sydney Morning Herald the referendum's failure was also partly due to the unwillingness of Australians to give any more power to a centralist government or any future federal government.^[44]

The ALP and Work Choices

The current ALP national platform (2004) is silent on the matter of enhanced Commonwealth law making powers and its industrial relations policy recognises the role of State industrial relations systems.^[45] Moreover, the platform recognises the historic difficulties in amending the Constitution by referenda unless there is 'broad support across the political spectrum' and concedes the role of the High Court is to interpret the Constitution flexibly so that it meets the 'needs of the day' rather than 'relying on any expression of original intent made at the time of Federation'.^[46] Given the history of ALP efforts to expand the federal parliament's law making capacity in industrial relations matters it might be expected that the party would welcome any attempt to expand the coverage and effect of federal industrial relations laws. But on the other hand opposition from ALP State governments to a widening of federal powers at the expense of State industrial relations systems has historical continuity. To that end the Howard government's Workplace Relations Amendment (Work Choices) Act 2005 has parallels to the Bruce government's 1926 proposal. For instance, in 1926 the 'dual' system of federal and State workplace regulation was perceived to be a problem because of 'overlapping and conflicting awards'. As the States had 'consistently refused' to yield their industrial relations law making powers to the Commonwealth, an expansion of federal power was justified due to the growth in national or interstate industries and to overcome the limitations of the arbitration power revealed by High Court decisions. Nevertheless, State ALP governments, branches and parliamentarians were suspicious of the proposal's capacity to weaken the improvements in employment conditions and worker's rights achieved with State legislation and industrial awards. And as the proposal directly challenged States rights and federalists attitudes, it also incited opposition from non-ALP groupings.^[47] Likewise, the Howard government's 2005 Act is seen even by members of the Liberal Party to be an attack on federalism.^[48]

     The constitutional validity of the 2005 Act was challenged in the High Court by five ALP State governments: New South Wales, Victoria, Queensland, South Australia and Western Australia. The Queensland government argued, inter alia, 'the people of Australia have repeatedly, at referendums, rejected attempts by governments of the Commonwealth to broaden the scope of the corporations power and to confer upon the Commonwealth Parliament a general industrial relations power [and] rejection by that sovereign force [the people of Australia] of proposals to add heads of power to section 51 of the Constitution is a powerful aid in construing the Constitution'. In dismissing the Queensland argument, the majority judgment held the failure of successive referenda to alter sections 51(20) and 51(35) 'provides no assistance in the resolution of the present matters'. The dissenting judgments were not so dismissive of the importance of referenda results. Justice Kirby, for instance, remarked 'If amendments that are agreed to are relevant to the meaning of the Constitution, those that have been repeatedly rejected should not be so lightly cast aside as irrelevant'. Justice Callinin also suggested the 'history of the referenda cannot be ignored' because this would 'subvert democratic federalism' found in the 'structure and text of the Constitution'. Furthermore, Callinin J noted the parallels between the 1926 referendum and the 2005 Act in that the justifications for both were based on the need to more effectively manage the national economy and 'the future happiness and prosperity of the Australian people were at risk' if the Commonwealth could not exercise its policy.^[49] Moreover, the response of Prime Minister Howard to the failed challenged has historical parallels to the Whitlam government. The day after the High Court had endorsed the constitutional validity of the 2005 Act Howard was specifically asked 'if you have so much faith in the Australian people why didn't you go to a referendum?'. His response, 'we didn't have a referendum because we didn't need one, we enacted a law which we believed was constitutional',^[50] was not all dissimilar to Whitlam's comments that centralised policy reform is 'fully capable of achievement within the Constitution'.^[51] The High Court's circuitous approval of unification should be welcomed by the ALP for it now allows the party to implement its policies with national coverage when it next gains federal government and thus circumvent non-ALP State governments.^[52]

Table 1: Federal industrial relations powers, Constitutional alteration proposals

Source: Parliamentary Library <http://www.aph.gov.au/library/handbook/referendums/index.htm>.

Note: * proposal of non-ALP government.

Conclusion

For the last 100 years the ALP has pursued something of a contradictory, and at times schizophrenic, approach to industrial relations and the Constitution. When in government federally the party has sought to expand the reach of the Commonwealth parliament's industrial relations laws. During the twentieth century this approach was consistent with the party's unification platform, and thus repeatedly sough expansion of federal law making powers via constitutional alteration referenda. While this philosophy was generally adhered to by the majority of the party it was not always embraced by State branches and parliamentarians, particularly when the ALP held State government. This schizophrenia can be explained by political pragmatism: federal ALP parliamentarians aspirated to expand their policy making influence; and State parliamentarians desired to protect their existing policy making influence. The divisions within the party over the non-ALP federal government referendum proposals of 1919 and 1926 clearly show how the unificationist philosophy could be moderated by pragmatic considerations.

     In analysing the relationship between the ALP and the Constitution it should be appreciated that expanded federal powers was, and remain, not necessarily an end in itself but merely a means to an end. The intended outcome of a plenary industrial relations power of the federal parliament was to implement policies that advanced the interests of the labour movement and workers generally. So when expanded federal powers had the potential to harm these interests, such as the referendum proposals of non-ALP federal governments, opposition from the party and its members can be more easily understood. Expanded federal powers allow for the implementation of ALP industrial relations policies that overcome the undesirable policies of non-ALP State governments and/or hostility from State upper houses. In this context the challenge by ALP State governments to the Howard government's 'Work Choices' legislation can be seen as part of an historic continuity, and not as some later-day conversion to the concept of federalism. It is the specifics of the industrial relations system itself, and the rights it confers on working people, rather than the jurisdiction or the constitutional means used to achieve the system which is the primary issue of concern to the party and the labour movement.^[53] Consequently, the ALP's opposition to the Howard governments 'new workplace relations system', from both the FPLP and State governments, can be traced to the origins of the party as a national political organisation.