Larvatus Prodeo

Dunno about you, but I’ve got to the stage with the government’s adverts where I have to change channel as soon as I see one. When you’re trying to flick back to maintain continuity in your program, it can get tricky. Then again, a couple of times I’ve found what’s on another channel more interesting. Is there another solution? John Quiggin has a good idea for the Labor Party, and the sanity of the population at large. Meanwhile, the High Court has just published its reasons for the weird decision it took on the labour movement’s bid to block this not only obscene but aesthetically punishing waste of public money. Folks may recall it was a split decision, with McHugh and Kirby dissenting. Justice McHugh was having absolutely none of it, and I’ve reproduced some of his highlights overleaf.

In their pleadings, the plaintiffs seek two declarations and an injunction. They seek a declaration that the drawing of money from the Treasury of the Commonwealth to pay for advertisements promoting the workplace relations reform package is not authorised by Appropriation Act (No 1) 2005-2006 (“Act No 1″)…

… In my opinion, Act No 1 did not authorise expenditure on this advertising. The defendants contend that it did so because the Act authorised expenditure by the Department of Employment and Workplace Relations on advertising that could reasonably result in higher productivity or higher pay in Australian workplaces. However, the defendants tendered no expert evidence that these advertisements might achieve either result and, after examining them, I can see no rational connection between the advertisements and higher productivity or higher pay. The advertisements provide no information, instruction, encouragement or exhortation that could lead to higher productivity or higher pay. The joint judgment of Gummow, Hayne, Callinan and Heydon JJ asserts, despite the contention of the defendants, that it is not necessary that the expenditure be conducive to achieving higher productivity or higher pay or any outcome specified in Act No 1. For the reasons set out in this judgment, however, that assertion cannot be accepted. Not only is it contrary to what was common ground between the plaintiffs and the defendants but it is contrary to the language of Act No 1, the parliamentary practice, the parliamentary documents that explain the operation of Act No 1 and the understanding of all members of the Parliament. I venture to think that the joint judgment places a construction on Act No 1 that will surprise all members of the Parliament irrespective of party or ideology. It follows that Act No 1 did not authorise the expenditure of the moneys of the Commonwealth on the advertisements. A declaration to that effect should be made and the defendants should be restrained by injunction from spending the moneys of the Commonwealth on advertisements in the form or to the effect of those already published…

…There is simply nothing in the advertisements that could result in an increase in productivity or wages. On their face, the advertisements are concerned to reassure members of the public – and workers in particular – that, under the reform package, workers will not be worse off and that there will be more jobs and higher wages for Australian workers and their families. The defendants tendered no expert evidence that “feel good” advertisements of this kind will increase the number of units of goods or services produced per worker or will induce employers to pay higher wages. In the absence of such evidence, I can see no connection – rational or otherwise – between the advertisements and higher productivity or higher wages. There is not a scintilla of material in the advertisements that could be construed as instructing workers to produce goods or services more efficiently or that could induce employers to pay higher wages. The advertisements do not instruct, encourage or exhort workers to increase productivity or employers to raise wages. The advertisements provide no information concerning techniques, products, processes or machinery that might increase the production of goods or services by workers. They provide no assistance to employers in obtaining skilled workers or to employees in obtaining skills that might increase productivity. They provide no information that might help employers to reduce costs or to increase revenue or production with a consequent increase in profit margins and higher wages.

… The defendants asserted that the advertisements were supported by the activity, “develop a workplace reform package which implements the Government’s policy agenda”. But these advertisements do not develop such a package. The “key priorities”, including that priority, are concerned with matters of substance. They “are directed towards encouraging employer[s] and employees to adopt flexible and modern workplace relations practice.” They are not directed to the public generally or to promoting the image of the government. Developing a workplace reform package to implement the government’s policy means developing a body of doctrine that can be transformed into law or industrial practice and change the present state of workplace relations so that they become more flexible and consistent with contemporary needs. The Portfolio Budget Statements contain numerous illustrations of the difference between policy initiatives and providing information – such as is found in advertisements – where the provision of information is a matter of substance. A department needs no specific authority to advertise as long as it contributes to one of the Outcomes. But these advertisements do not do so. Where advertisements do not have a rational connection with the specified Outcome, they are only authorised where they are deemed to have that connection by being specifically referred to in the PBS. Advertising or any general description that would cover advertising is not mentioned in the Department’s PBS. The advertisements appear to be political in nature. They appear designed to win support for government policy or, at least, to negate the impact of criticism of that policy. Nothing in them provides any support for the conclusion that somehow by some means the advertisements will contribute to achieving higher productivity or higher pay workplaces.

In my opinion, there is no rational connection between the advertisements and Outcome 2. It follows that the defendants had no lawful authority to draw funds from the Treasury of the Commonwealth to finance the advertisements in question…

Two comments. First, The majority decision has put aside the government’s system of managerial accountability, illustrating again how bogus this system is when it comes to holding governments to account, despite the protestations of the system’s (largely conservative) proponents. Secondly, the government has also benefited from the dreaded (by conservatives) practice of ‘judicial activism’.

What a farce! And for calling it for what it is, bravo Justice McHugh!