Glenn Milne is having a rough time of it. Whether it’s because no Minister will return his calls, or because he just doesn’t like the Rudd Government, he’s stuck playing in the Coalition sandpit. But this does have its advantages, because he has an up-close view of Coalition tantrums, as well as being privy to its plans to hurt the Government.

Admittedly his last effort to throw some toys at Labor failed dismally when his “Platform for Pervs” piece on Darren McCubbin was shown to have skipped the bits about both the previous Government’s and the Victorian Opposition leader’s support for the offending musical act.

Yesterday he was running his second Tom Hughes-based article since February. It’s good to see Milne courting both the young whippersnappers of the Liberal ranks, like Greg Hunt, and the Methuselahs of the conservative cause. Milne breathlessly reported that Tom Hughes reckons the Commonwealth’s constitutional power in relation to corporations isn’t sufficient to extend Fuelwatch to unincorporated businesses.

Lucky Hughes’s advice is free. File it under “no sh-t, Sherlock”. Of course the corporations power doesn’t extend to unincorporated businesses. Corporations. Unincorporated. Hello?

Milne makes much of the Opposition catching Robert McClelland out on this issue last week. Catching McClelland out is like shooting a fish in a barrel, although more fun, because fish don’t have feet they can stick in their mouth.

This may come as a shock to Milne, but this issue has been deal with before. Several thousand times. Every time the Commonwealth has legislated in relation to business, in fact. Usually the problem is dealt with because there is some other constitutional power under which the Commonwealth can make laws, or because the corporations power can be stretched in certain circumstances to apply to unincorporated businesses, which it looks like the Government is relying on in this case.

You can always find a lawyer to offer an opinion on this stuff. And I’m sure, as a former Liberal Attorney-General and Malcolm Turnbull’s father-in-law, Tom Hughes’s advice was entirely independent. What lawyers say doesn’t matter. It’s what judges say that matters – after someone has decided they’re willing to go to court to hear it.

If a judge declares that Fuelwatch isn’t constitutional in relation to unincorporated businesses, well, that’s not exactly a major problem. Lots of Government legislation works effectively without roping in sole traders or partnerships. The previous Government couldn’t find a way to extend Workchoices to unincorporated businesses, but wasn’t too fussed, despite such businesses apparently being one of the key employment generators in the economy. It carried on regardless, and Workchoices – as the remnants of the previous Government now sitting in Opposition can attest – worked exactly as intended.

“Talk about young bull v old bull,” Milne began his piece. Entirely apt for bullsh-t.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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