Government seeks unrestrained IR executive power

by Denise Fairservice

Henry VIII clauses in the WorkChoices legislation will give the Federal Government unfettered powers to amend provisions in any act that regulates employment without coming back to the parliament.

Henry VIII is probably best known for his six wives, two of whom were beheaded for "treason" (read infidelity) on contrived charges because he wished to move on in order to provide more male heirs. However he is also known for his succession of parliamentary statutes by which he seized land, particularly from monasteries and the Church. One way he was able to do this was by the "Statute of Proclamations" 1539, which gave him the power to legislate by proclamation. Henry VIII was regarded popularly at the time as "the impersonation of executive autocracy". The statue of proclamations enlarged his powers to make proclamations having the force of law. The sole purpose of parliament was to enable minor amendments to its own legislation to be made for the purpose of fitting its principles to the fabric of existing legislation and for the purpose of meeting hardship.

Henry's legacy has continued through legislative history by the inclusion of "Henry VIII clauses" in legislation. These are an empowering provision that enables legislation to be amended by regulation and provides the executive with the power to override the parliament. This is granted rarely by parliament and is subject to strict controls, including a sunset clause.

The Workplace Relations Amendment (WorkChoices) Bill contains regulation-making powers which are far wider than the usual regulation-making powers in acts. Regulations provide for machinery or ancillary matters to give effect to the law and policy embodied in legislation.

The powers in the bill would allow:

• The exclusion from operation of any state/territory law.
• The stripping from preserved state instruments (awards, enterprise agreements, industrial agreements), AWAs and certified agreements of "prohibited content". There is no indication in the bill of what would constitute such content.
• The amendment of the definitions in the bill of "employer", "employee" and "employment" concepts.
• Any further function to be conferred on the Fair Pay Commission over and above what the legislation provides for. This may be done under this legislation or under "any other Act".
• The Government to determine how and when the Fair Pay Commission exercises its powers.
• The amendment of acts including the Workplace Relations Act that are "related to" the amendments made by the WorkChoices legislation.

These regulation-making powers would enable the executive government to amend provisions in any act including the Workplace Relations Act which regulate employment without going back to parliament. If members are concerned about the draconian provisions of the current bill, these clauses give the government unfettered powers to amend them if they wish to give employers more power or if the legislation proves difficult to implement.

Denise Fairservice is an Industrial Officer.

©2000-2002 NSWTF Online is a resource for teachers
provided by the NSW Teachers Federation.
[Authorisation of election comment] [Privacy]

http://www.nswtf.org.au/journal_extras/execp.html
Last Modified: 18 Nov 2005