Last Saturday my memory, listening on NewsRadio, is that Gillard was conducting a media wrap-up session at the CHOGM Conference in Perth around the middle of the day. The last thing she needed with 54 heads of government and/or foreign ministers plus thousands of delegates about to leave for home after a successful conference which brought considerable credit to Australia was for some clown to ground the Qantas air fleet. If I’ve got the timing right, Joyce’s announcement at 2 pm AEDT would have been at 11 am Perth time. At noon Perth time three soldiers were killed in Afghanistan.

I understand that Gillard was able to confer with the relevant senior ministers during lunch about the Qantas dispute.

Joyce’s timing could scarcely have been worse.

I heard on the radio that Labor ministers were incandescent with rage over Joyce’s stunt. The Australian Financial Review yesterday reported that the Government believes it was deliberately blind-sided. They say that the Government had previously played down the notion that there may be a problem flowing from Qantas’ Asian plans. Now Albanese has said:

“We will not countenance any breach of the act.

“We have a watching brief, and as Qantas makes announcements or makes its position clear as issues develop with regards to plans for restructuring, the government will seek advice as that is made.”

According to the AFR:

The act, designed to ensure the Australian character of Qantas is retained, prohibits the airline from flying international passenger services under a name other than Qantas and requires the majority of Qantas International’s maintenance, administration, training, catering and flight operations facilities to remain in Australia.

There was a press report that Gillard had failed to take a call from Joyce. He corrected that, saying that he hadn’t thought it necessary to bother her because he knew she was busy with CHOGM and he made contact with the relevant ministers. She may have taken this as an insult. Would he have not bothered to contact Howard, kaeting or hawke under similar circumstances? I’m speculating, but on Monday Laura Tingle’s article told us:

One thing is sure, a prime minister deeply angered by what she clearly sees as an attempt by Qantas to blindside the government, was on the warpath on Monday, confident of her ground and not taking any prisoners.

Also:

Gillard was unapologetic on Monday about the wider grounds for dispute. She says that job security – “of course” – should be something workers should be able to entitled to discuss with employers.

Yesterday the front page lead was Gillard takes unions’ side:

Prime Minister Julia Gillard has unapologetically asserted workers’ right to bargain on job security, in the face of employer arguments that management must be free to manage without interference.

Gillard has also said that it is “not appropriate” for workers to agree on pay with their employers and then find contractors given the work at cheaper rates, making the workers redundant. This is a specific concern of the baggage handlers.

Apparently a scheduled review on the fair work Australia act is coming up next year. One specific change expected is a requirement on employers to give adequate notice of lock-out action. It’s noteworthy here that Andrew Stewart, an expert in industrial law, said the other day that Qantas could have arrived at the same place by giving a week’s notice of such action. Joyce’s “nuclear option” was in his view unnecessary overkill.

Qantas and employers generally must now be wondering what other changes to the FWA Act will be put forward, especially with an alienated Government dependent on cross-bench support.

… And it should have entered the negotiating fray itself, helping bang heads together.

Leaving that aside, though I think there is an element of piling on Julia Gillard at work, Bandt makes a number of claims, one based on a factual error, and the other encompassing a confusing elision between claiming the “government shouldn’t be taking sides” (which the government itself has claimed not to be) and an apparent belief that a suspension of the bargaining period, as opposed to a termination, would somehow have resulted automatically in industrial victory for the unions. Or perhaps Bandt is making or implying an argument that it’s undesirable, generally, for ‘third parties’ to intervene in industrial disputes.

Let’s get a number of facts on the table, first:

(a) The government, represented at FWA on behalf of the Minister, Chris Evans, argued either for a termination of the bargaining period, or for a 90 day suspension. That’s clear from a reading of the decision by Guidice J, Watson SDP and Roe C, right at the outset. The government was actually being consistent with the thrust of its own Act, that such matters ought to be subject to judicial determination, and, like the other parties involved, was following normal industrial practice by envisaging a range of outcomes which the tribunal might give effect to. It’s important to recognise this, and as far as I can see, it’s been completely overlooked, because it is highly pertinent to the Tony Abbott line that the Minister should have used the powers available to him under section 431 of the Fair Work Act.

(b) Bandt says:

Ever since John Howard’s WorkChoices, the spirit of which still lives in the current legislation, many unions have sought to bargain for an outcome and avoid arbitration. Why? Because the outcomes you’re likely to get in an arbitration are widely thought to be less than what you might get in bargaining. Especially over matters that impinge on managerial prerogative. Like job security clauses, a key claim of the unions in the Qantas dispute, because they are concerned about ‘offshoring’ and contracting out of their work.

Partly, this is wrong, and partly, again, it’s confused. FWA gives greater scope for arbitration than WorkChoices in the case of low paid workers, in particular, and where both parties consent to conciliation and arbitration. It’s true that the provisions regarding the availability of arbitration to settle disputes are not substantially changed from WorkChoices (with a very important exception, which I’ll come to). But this gives the lie to his logic. How could unions have been seeking to avoid arbitration, when arbitration has not been a legal option except in exceptional circumstances such as would trigger the termination of a bargaining period? It doesn’t make any sense, and in fact, the whole thrust of the reforms since, arguably Paul Keating’s Industrial Relations Reform Act 1993, and certainly since the Peter Reith/Cheryl Kernot Workplace Relations Act 1996, has been to de-emphasise and radically restrict arbitration.

Certainly, from WorkChoices onwards, the choice has simply not been there for unions. So it’s hard to know what he’s saying here. That’s why various analysts of Australian industrial relations have characterised the system we had as ‘voluntary collective bargaining’. One of the most important changes ushered in by the Fair Work Act was to remove the right of management to refuse to negotiate with unions. So we have probably returned, not to a regime which offers a choice between conciliation and arbitration and bargaining, but to one of compulsory collective bargaining. The enhanced provisions for union recognition, and for good faith bargaining, are precisely what business has been screaming about. So I think Bandt’s claim that “the spirit of [WorkChoices] still lives in the current legislation” needs heavy qualification.

Under WorkChoices, the most likely outcome would have been freer rein for Qantas to pursue a naked strategy of de-unionisation. Peter Reith’s very vocal calls for ‘free collective bargaining’ are exposed for what they are by his references to Margaret Thatcher in the same breath.

What I suspect Bandt actually has in mind, and this is taking us closer to the crux of the matter, is the degree to which unions in strong bargaining positions have been able to influence (but not determine) managerial strategy through “job security clauses” and restrictions on contract labour, or agreements that contractors be paid the same as employees. Typically such agreements have been reached in labour intensive industries where time constraints (and penalties for non-completion) are a factor, and where competition is minimal. Construction is the obvious one, and mining is another.

But I’m unclear as to why Bandt thinks, or could be read as thinking, that issues regarding job security may go more in Qantas’ favour under arbitration. I don’t see any reason why they wouldn’t fall within the scope or ambit of the dispute, because they are “employment matters” (and Australian industrial jurisprudence has always sought to wall off management prerogative). Certainly the Act envisages the distribution of labour between full time and other employees and the role of contractors as matters that can be subjects for an enterprise agreement. Another very significant change between WorkChoices and the FWA was the removal of the severe restrictions of matters on which parties could bargain. Given that there are few disputes in recent times which have reached the point of arbitration, I can’t see any reason on the face of it why there would be an assumption that job security clauses would not be matters on which FWA would make a determination.

It may be that he is thinking of the very strong line in the sand business is drawing in resisting these clauses, which is, again, one of the key planks of the anti-FWA campaign.

The assumption by some, such as Dr_Tad, who have seized on Bandt’s rather confused remarks (and he does a nice line in trying to be happy and shiny and appealing to everyone – “reach a negotiated outcome by supporting the whole of the airline, management and employees, with an eye to the country’s long-term interests”) that a suspension of the bargaining period would somehow lead to a victory for the unions seems to me to be highly questionable. Syndicalist sentiment aside, sometimes, sadly, the workers united are defeated. It’s not clear to me that the interests of pilots, baggage handlers and engineers are identical, nor that they would not become separable during a 90 day bargaining period (and let’s not forget, 42 days are potentially available under the FWA decision). But, more broadly, I’m unable to see:

(a) that the industrial muscle exists to produce an outcome favourable to workers’ desire to restrict the company in its pursuit of its strategy of offshoring, cost-shifting and outsourcing;

(b) how, in the absence of arbitration, Alan Joyce would be shifted from his stated intention to again lockout the workers. All he would have to do is endure negotiations for 90 days before the bargaining period recommenced, and there’s no legal lever to exert pressure on Qantas to negotiate on job security, which it’s made clear it does not want to do. With arbitration, there is. Or, at least, there potentially is. It needs to be remembered, and FWA took note of this, that Qantas could also, and probably would, lockout its workforce again on the resumption of a bargaining period. I doubt there’s much, if any willingness, on Qantas’ side to reach agreement on job security issues, which are what remain in the air, not pay.

In short, I don’t think Bandt has much warrant for saying this:

As it is, a Labor government has tipped its hand and sided with Qantas. Whatever Fair Work Australia decides, Qantas now knows the government will help it get to arbitration.

However, he is right about one thing. In a statement today, he writes:

“Now that the government has done what Qantas wanted and removed the workers’ capacity to protect Australian jobs, the government has a responsibility to outline how it will prevent Qantas from off-shoring its workforce.”

The first bit is wrong, for the reasons outlined above. The second is right, because it’s only through political rather than industrial action that a serious challenge can be posed to Qantas’ aim of effectively closing down its international operation in favour of joint ventures and subsidiaries which would offshore jobs and radically drive down labour costs.

“Job security clauses” would be a useful restraint on this form of aggressive management strategy, but the Australian industrial relations regime simply doesn’t empower workers to determine or even co-determine management strategy. Nor are the industrial interests of the various workers and unions identical with a political strategy to maintain airlines as providers of an essential public good (which is why, of course, Qantas should never have been sold in the first place). The specious rhetoric of Qantas management about competition and cost needs exposing for what it is (and one benefit, incidentally of arbitration is that it would allow the claims by unions that it has been cost-shifting to make its international operations appear unviable to be tested).

Similarly, we need a debate on whether or not we, like other countries, need to get back into the realm of owning airlines, precisely so that management thuggery can be curtailed and so that public goods can be provided publicly (and no one disputes the financial viability of Qantas’ competitors which are government owned). In other words, we need to resist the logic of the market and contain and constrain it through politics. We need to start reviving the idea central to the social democratic project of de-commodification, of progressively challenging and removing the inexorable logic of the market through collective action, including through action which seeks to utilise and reshape the institutions of the state.

That option exists, and it exists precisely because public suspicion of corporate behaviour and the excess involved in capitalism is fast reviving. It may well be that these hopes are incapable of fulfilment by the Australian political class. But it’s a disappointment that The Greens, in the persona of Adam Bandt, are chasing a rabbit down a bolthole by trying to score political points against the Labor government. Much more worthy of highlighting would be the mechanisms I mentioned in my post on Saturday which Bob Brown himself has sponsored, through amendments to the Qantas Act, which might usefully and fruitfully challenge corporate power.

By contrast, the argument that the bargaining period should be continued (and the Dr_Tad corollary that this would necessarily lead to victory for the unions) seems to me not making the perfect the enemy of the good, but the unachievable the enemy of the ambivalent. That ambivalence is best ended by continued political action around the central issues at stake here: the need to rein in and constrain aggressive market capitalism in the interests of workers and the public good.

Update: Adam Bandt responds in the thread and I respond in turn. I’d also observe that there’s a fair amount of extremely valuable and useful information in the thread from some commenters on the precise context of the use of various powers available to FWA under the Fair Work Act, which has been helpful to me in further informing my understanding of what is still relatively unsettled territory under a bargaining regime and legal framework that is, in some ways, novel. It adds nuance and substance to the debate, but I’m yet to be persuaded that I should shift from the broader political points made in the original post.

NB: Comments strictly on topic, please. All general comments about the Qantas dispute can go on the recent roundtable thread. All comments I regard as being unresponsive to the post will be removed without warning, and correspondence won’t be entered into. Please note that I won’t be moderating constantly, but I reserve the right to return and remove comments retrospectively.

Bernard Keane encapsulates Joyce’s strategy:

Alan Joyce’s logic is the elegant reasoning of a terrorist.

If the result of his massive disruption of the Australian transport system is the further shredding of the Qantas brand, which began under Geoff Dixon and which has accelerated rapidly under his Irish successor, and leads to further service cuts as Australians turns their back on the airline, that’s fine.

It will merely expedite his plans to offshore-by-stealth Qantas, wrecking the Australian-based operation while he sets about establishing lower-cost, more competitive foreign-based services.

To this end, a furious reaction against the airline for its act of malice toward Australian travellers is a price well worth paying; indeed, it may be part of the longer-term plan.

Joyce’s actions and motivations are almost a parody of the globalising logic that profits are all, workers, customers and any notion of public service or good nothing. And it’s in that quality of excess, in the gamble for high stakes, that his house of cards has the real potential to come tumbling down.

It shouldn’t escape notice that the Chair of the Qantas Board, Leigh Clifford, hails from Rio Tinto, a company long known for its overt deunionisation strategy. There is undoubtedly an element of union busting in all this, as well as a broader push from the more militant elements of the Australia corpocracy to smash the Fair Work Act. Peter Reith’s high profile interventions have to be seen in this context.

Hence, Qantas’ other play here, through keeping its cards close to its chest and failing to inform the government of the planned lockout (let alone passengers), was to force the government to bring the dispute before Fair Work Australia. Hence, too, Anthony Albanese’ fury.

But, as Bernard Keane also observes, there is real opportunity for the government.

There is no doubt that Qantas’ public relations offensive has failed. Essential Research found last week that 43% of respondents supported renationalisation of the airline, a large number blamed Qantas management rather than workers, and very large majorities opposed offshoring and thought Joyce’s remuneration too high.

The polling is not unambiguous, but there’s a plethora of pointers to how Joyce’s sneak attack has resonated, from a Facebook protest page which garnered almost 4000 likes in less than 24 hours, to the reaction on Twitter. The timing, coming on top of his huge pay rise on Friday, and the massive disruption and frustration caused to passengers on a Saturday afternoon, is so stupid as to beggar belief.

Joyce has exemplified the mindset of the 1% at a time when the Occupy X movement has successfully put systemic critique back on the agenda.

So, how does all this have the potential to backfire on Joyce?

First, it’s being discussed by many as the most spectacular example of management aggression since Patrick’s locked out its workers on the docks in 1998. Unlike the waterfront dispute, the impact on the public is much more palpable and much more direct.

Secondly, as Ben Schneiders correctly observes in the Sydney Morning Herald today, there is the potential for Fair Work Australia to arbitrate the dispute, a power now rarely used, and only available to the tribunal in the case of significant disruption to the national economy. The Minister, Chris Evans, could also make orders to both sides to cease industrial action, though that would be a last resort. The Fair Work Act emphasises bargaining in good faith, and it may well be that the tribunal will find that Qantas has not been. Then, there are legal questions over whether extending the lockout to employees who were not engaging in industrial action, and standing down others, is lawful.

Given that Qantas is seeking to put FWA on trial, and that the legislation is so closely identified with Julia Gillard, the arguments put by the Commonwealth will repay close watching. It would also be surprising if there were not pressure to tighten the provisions whereby management (unlike unions) does not have to give genuine notice of its intent to pursue industrial action. Qantas’ actions in grounding its fleet immediately, and alleging that the lockout would not begin on Monday, are specious in the extreme.

It’s crucial to remember that Joyce, far from pulling his fleet from the sky as a “response to union action”, has himself, according to the legal definition, taken industrial action.

More broadly, as Schneiders comments, there may be momentum for a broader use of the arbitration power, to protect the public interest.

Thirdly, Qantas faces some pointed questioning over its obligations under the Qantas Act which enabled privatisation. There are specific provisions, reflected in the airline’s own constitution, which require it to maintain its operations in Australia, and restrict it from flying internationally under another name. The unions have corresponded with Qantas about this, and the management line has been that subsidiaries are not bound. But Senate hearings have been examining legislation introduced by Nick Xenophon and Greens Leader Bob Brown which would close off this option. If such amendments were to be supported by the government, we would be in a very interesting place indeed.

And finally, as Bernard Keane writes:

Voters, it seems, just want their old Qantas back. In the view of Joyce and the Qantas board, they can’t get it back in the airline’s current form, not given continuing strong competition from government-subsidised foreign airlines and the high dollar. The only way to get the old Qantas back may indeed be to nationalise it and subsidise it, or to return to the days when competition from foreign airlines was even more tightly restricted than it is now.

And no one in federal politics is pushing those options. Well, not yet.

In a climate when the recklessness and contempt of corporate power reveals its naked face, the government would have little to lose, and much to gain, from reining it in. We shall see.

Alan Joyce is being crazy brave. So, too, should Julia Gillard be.

NB: To keep comments focused, please leave your response on Helen’s open thread. Comments on this post are closed.

Update: Laura Tingle.

But can we let the primaries idea go, please? The party does not need more focus on the individual MPs and leaders. It’s not the problem that needs solving.

Most people join political parties because of the issues. They want to see Labor policies enacted by a Labor government. It’s when the policy side starts slipping that people start caring about the people we put there, when you can’t expect Caucus to follow the platform that is developed, written, debated and voted on by its members.

When I was involved with policy committee work, a now senior party official once talked about the way policy work has changed. It used to be that platforms stated broad values and principles, leaving the specifics to the government. But slowly, as the platform became more and more optional, it became more and more specific, so as to make it easier to demonstrate compliance, or lack of. But of course, as policies become more specific, it is much easier for the caucus to find reasons why they can’t work, sometimes valid, sometimes not.

While it’s easy to resent unions using their numbers to put loyal factional warriors into contested seats, it’s worth considering that part of why they want to do that is so that they will have trustworthy people fighting for their policies in Parliament. It’s gotten to the point that a Senator in WA moved from the outer suburbs to the inner city to be closer to their union, and hardly anybody laughed at that. If we were to look at better ways of making the platform compulsory for Labor governments, then preselection battles would become more about getting good quality candidates who can win elections.

For others, the focus on preselections and leadership spills comes as a result of boredom and/or disillusionment. Most politicians enjoy and excel at negotiating and deal-making. Those are the skills that get them to where they are. So when they find themselves unable to achieve much in the way of policy wins many turn to a way in which they can exercise their skills and see immediate results.

Grassroots activists and true believers will not join the party for the ability to vote in a local primary ballot. If Labor wants to demonstrate some “connection to the community” they should start by recognising what it is they do want.

Meanwhile, as the Gillard government plans to introduce legislation to restore offshore processing of refugees, the same poll finds 54% believe asylum seekers should be processed onshore.

Update: Peter Brent argues that a Labor leadership switch would lead to Tony Abbott’s demise as Liberal leader, a scenario I canvassed here.

A dire warning was provided to the Coalition by the Secretary of the Immigration Department and senior officials:

MORE than 600 people could arrive by boat every month, leading to the collapse of Australia’s detention system and European-style unrest in its cities, if there is a return to onshore processing of all asylum seekers, according to a bleak assessment from senior Canberra officials.

Isn’t this just indicative of the extreme degree to which this issue has been framed in terms that are sheer fantasy?

There is actually no good reason why 600 arrivals a month could not be processed onshore in an orderly way. If capacity is lacking to perform the required checks, surely some of the immense sums spent on offshoring could be rediverted.

I am puzzled as to how such capacity could magically appear on Manus Island or Nauru, or if one were to take the Gillard position rather than Tony Abbott’s, how we would be justified in effectively dispensing ourselves of any responsibility for the processing of asylum seekers in Malaysia or elsewhere, and still remain committed to the Refugee Convention.

But rationality seems to have fled.

The dark fantasies of “European-style social unrest” among policy makers are even more disturbing.

I am not aware that such “social unrest” (what unrest? London? Paris?) has any particular or compelling connection with refugees.

What are they imagining here?

On another note, Abbott’s goal appears to be to humiliate the Labor Party and force acceptance that they were wrong to oppose Nauru in the Howard era, and that the increasingly ubiquitous former Prime Minister was right.

If, and I don’t know that it’s very likely, because it continues to seem to me that the Coalition’s incentives are for the issue to continue to hurt the Gillard government, there is some sort of “bipartisan” legislation, how would this sit with many Labor MPs? If anything might precipitate a serious threat to Julia Gillard’s leadership, presenting that sort of bill to Parliament would do it, I suspect.

I think the return of Rudd would put the spotlight on Abbott’s total fraudulence, maybe even paving the way for the Rudd vs Turnbull election we should have had last time.

That’s an interesting reflection, because amidst all the sound and fury that surrounds the Gillard government, the related facts that Tony Abbott is not popular and that no one knows what an Abbott government would do except try to return to Howardia are not highlighted enough.

Tony Abbott stands for endless upheaval. He’s the permanent revolutionary of the Coalition side.

On his stated platform, there would need to be another election should he become Prime Minister. In quick order.

That’s simply because what he says he wants to do (repeal the carbon price, undo the resources tax, shift towards individual bargaining in workplace relations, dissolve the NBN and so on) would not, in all likelihood, be capable of being carried through a Senate where the probability that The Greens will retain the balance of power is high.

So an Abbott government would be more of the same. Lots of yelling and posturing, with the view to forcing a double dissolution.

Abbott’s implied assurance that calm and stability and Howardian goodness would return in an instant, and all the many, many grievances he has fostered would be instantly wiped away is impossible of attainment.

Having won power, it’s hard to see the Coalition (which is always of the view that power is the oxygen it ought to breathe) chancing it on another throw of the dice. It would be under a PM whose sole virtue is his not-Gillard-ness.

It is not at all impossible, indeed I’d say likely, that there might be a Liberal leadership change either before the 2013 election (which may occur earlier) or shortly afterwards. Put your money on before. I suspect that John Quiggin is right that a Labor shift to Kevin Rudd (and probably only to Rudd) would act as a catalyst.

On the Labor side of things, reality has to be confronted.

Labor’s primary vote has collapsed, and Julia Gillard’s approval has collapsed.

In reading over the thread about Peter Beattie’s little play, two themes are interesting:

(a) It’s all the fault of the media;

(b) Julia Gillard’s government has done good things.

(a) can be disposed of easily. Kevin Rudd did not have News Limited in his pocket, and he and the ALP enjoyed very high popularity from the end of 2006 to the end of 2009. A hostile and febrile press gallery, and “campaigning” newspapers are simply just the environment in which a Labor government now has to operate.

(b) mistakes legislative command, more often than not, for political and governmental authority. No one is really going to vote Labor because 188 (or whatever) bills have been passed by Parliament this year. A government which looks to be in a state of panic, like a bunny in the headlights, when confronted by the inevitable implosion of an ill-judged and rushed policy fix has little claim to authority.

The good things that have been done (a proper paid parental leave scheme, health funding reform, the NBN, and so on) do not redound, for whatever reason, to the government’s credit.

Over and above that, as Malcolm Farnsworth makes clear in an excellent piece at The Drum, there’s a longer term hollowing out of the Labor project which is really starting to show.

Kevin Rudd’s removal, whatever his faults, were symptomatic of that decline.

Kevin Rudd’s removal also explains most of why Julia Gillard has not been able to make a success of things. The accusation of a ‘lie’ gains so much traction because she can easily be perceived as having seized the leadership by stealth.

Now, that is not true, but the fact that the political logic behind that perception is at work is a fact, and a fact that must be reckoned with.

I don’t think the “hold the nerve with Gillard” strategy is a goer any more.

The three policy issues Julia Gillard herself nominated at the time she became Prime Minister are causes of the government’s pain. Principally, climate change and asylum seekers, but the resources tax is also not settled, and the departure from the original design has, it’s become clear, exacerbated all the political issues associated with the “two speed economy”.

On climate change, Labor gave the issue away to The Greens. On asylum seekers, Labor gave the issue away to the Right.

What we need is a return to sanity in Australian political life. So, Quiggin is probably right that a Rudd-Turnbull contest would promote that. We may not get there. Anything can happen. But Julia Gillard’s effective Prime Minister-ship is almost certainly over.

Again that is not fair, but there it is.

I think that if the leadership were to change, the most likely outcome would still be a sizeable Coalition win. This Labor government is beyond saving. But some of the furniture needs saving, one of Australia’s two principal parties of government needs to recover some dignity and self belief, and the country needs anything other than an Abbott-slide.

Julia Gillard should think about that.

The problem now with the ‘hold your nerve with Julia’ strategy is that her personal and policy performance appears to be a very poor argument for it.

It’s true that the ALP has some runs on the board (the NBN, parental leave, and so on) but it appears incapable of selling them, and stuck in this horrible vortex where its attempts to play on the field the Right has layed out look ever more self-defeating and anarchic.

Peter Beattie’s son appears to be his official spokesperson, which is odd, but it’s hard, having lived with the bloke as Premier for so long, to believe that he’s not touting himself as a Labor messiah.

That this could even be taken seriously is an index of how much has gone wrong, and how quickly.

Probably the only chance the ALP has is to go back to Kevin Rudd, but I don’t think they’re going to. And I don’t think they’re going to face up squarely to the way they have contributed mightily to their own woes over the past year, which would be a precondition of doing that.

So, what does the ALP do?

I’m not certain they can answer the logically prior question – ‘what is the ALP for?’ And there’s the rub.

Politically, of course, as Bernard Keane observes today, the impact of the decision really is to drive another nail into the Gillard government’s coffin.

It is very puzzling that, given that Ministers would no doubt have been supplied with excellent advice from the Commonwealth Solicitor-General, this result wasn’t foreseen. It really does point up the desperation and short term media cycle driven horizons which have bedevilled the Gillard government, ironically to a degree greater than they bedevilled the Rudd government. The incompetence narrative seems to reflect truth.

We are not going to see a legislative fix to the issues identified by the Court, because The Greens, independents and Coalition, for very different reasons, will not support one. And nor should one be advanced.

In commenting on the ramifications of the Court’s decision at Troppo, Ken Parish writes:

The Gillard government should now accept the inevitability of its forthcoming election defeat and concentrate on putting in place asylum seeker processes that are as sound as possible from a policy (rather than short term populist) perspective. As I’ve argued previously, a policy based on community accommodation, rather than mandatory detention, of asylum seekers once initial health and security clearances have been passed, is clearly preferable from a policy viewpoint. It will almost certainly result in a measurable upsurge in arrival numbers, but that is unlikely to result in total numbers that Australia will be unable effectively to absorb.

I could not agree more.

When I was discussing the Centre for Policy Development’s paper, Breaking the stalemate on asylum seekers and refugees, I wrote:

It would not be too hard to argue for a completely different path. It would take courage. But Labor has very little to lose, and potentially a lot to gain, by doing the right thing.

It is very hard to see a path for the Gillard government to be re-elected. But outcomes are not pre-determined. If Ministers have not read the CPD Report, they should be doing just that as a matter of immediate pragmatic political priority.

If the ALP is to lose anyway, the paradox might be that by regaining its soul, it might just avoid its fate. If not, then it might just provide a path by which Labor could return to opposition demonstrating that it actually stands for something.

It really should be very clear now that playing defence on a turf shaped by its political opponents and the media is absolutely and fatally counter-productive.

…the motivating force behind these groups appears to be more about expressing resentment about social and economic change in recent decades, and particularly because such changes have delivered nothing but difficulties for the demographics we’re talking about: social change has undermined the once-dominant status of older white heteros-xual people and males in particular, and, in the Australian context, economic changes have squeezed them, along with everyone else, into a far more competitive, market-based economy that no longer delivers the sort of certainty they grew up with and that Generation X, in particular, never had.

For such people, Gillard’s gender (and unmarried status) or Obama’s race are not so much a problem as a high-profile, indeed inescapable, symbol of how much the world has changed and changed in ways that deliver nothing but pain for such people.

I think there’s probably an aspect of the phenomenon he identifies in the second para, but I am very far from being as confident as he is that racism and sexism are not a big part of the picture.

He’s also spot on about the ludicrous claims about ‘censorship’. And about the way the Coalition is essentially using this diffuse ressentiment to contribute to its recreation of the febrile atmosphere of 1975.