The presumption which had marked the era of Powers' Presidency—that economic conditions were not conducive to any substantial advance in labour standards—continued after the reconstruction of the Court, though the newly appointed judges had different views of the degree of restraint that the situation required. The available data analysed in Chapter 5, especially those about unemployment, indicate deterioration in the economy in the later years of the decade. Moreover, contemporary comparisons between the productivity of industry in the 1920s and in the pre-war years produced results ranging from actual decline to, at best, a small improvement. As the decade wore on and no decisive improvement emerged, there was little scope for any assumption of continuous improvement of wages and conditions. By the end of 1929, the tepid performance of earlier years was giving way to a foretaste of the crisis to come.

7.1 The basic wage

Although there was no major innovation in the Court's approach to setting the basic wage, there was some important working-out of existing principles.

7.1.1 The standard

Dethridge, in the Glass Workers' case of 1927, dealt with a union attempt to revive the Piddington wage:

11.1 Pre-1937 issues

After the four, virtually annual, basic wage cases of the Depression years, there was no further application for a general review until 1937. The interval may have reflected union priorities for raising margins and for resuming the movement toward a general 44-hour week, as well as a judgment about the likely attitude of the Court toward the degree of economic recovery.

There were, however, cases dealing with subsidiary issues.

11.1.1 Geographical differences

There had emerged over the years of basic-wage prescription a diverse set of basic-wage rates as between localities. In most awards, the rates applying in the capital cities corresponded to the price relativities indicated by the Statistician's index numbers. The substitution of the C series for the A series index altered these relativities, the principal change being a rise in the relative wage in Adelaide. There were, however, awards wherein uniform basic wages applied across States. Textiles were an example. The reason for uniformity in these awards was interstate competition in the product markets. For non-metropolitan areas, the Court had applied various deviations from the strict index-related rates, usually in recognition of economic difficulties of non-urban producers. In 1934, it adopted a rule that basic wage rates in country areas would be equal to the amounts indicated by the price index minus 3s. This was in recognition of disadvantages—associated especially with transport costs—of country employers competing with metropolitan firms.

12.1 Wages above the basic wage

During the Depression, the Court had left margins for skill virtually constant as money amounts, save for the operation of the 10 per cent cut. Cancellation of the cut in 1934 meant that most margins were restored to their pre-Depression levels. Since the basic wage had fallen along with prices, the net effect was to increase the relative level of margins. As the Depression receded, the Court moved gradually to an even more generous treatment of margins, and there is no evidence that it was restrained by the widening of relativities that had occurred almost fortuitously in the years 1929–34. The change in approach had two main aspects: (1) a willingness to increase margins due to a view that economic necessity had hitherto compelled the Court to keep them too low and that industries were now able to bear higher wages; and (2) a resumption of the practice of assessing margins on the basis of the work performed. These two sources of change were not entirely separate: in some cases both were at work. It will, nevertheless, be convenient to discuss them as distinct processes.

12.1.1 The move to higher margins

The Court's willingness to approve higher margins was due partly to a general relaxation of wage restraint and partly to a conviction that more highly skilled workers were underpaid. All of the judges, to varying degrees, invoked both reasons for granting increases.

9.1 The inception of Depression wage policy

As discussed in Chapter 7, in the late 1920s judges referred from time to time to the need for a fundamental review of the basic wage. Lukin, in particular, was exercised by the continuance of Powers' 3s. Apparently, a general inquiry into the basic wage was delayed by the volume of work claiming the Court's attention. In December 1929, Dethridge, in a case before the Full Court, noted that the basic wage was not an issue in that case, but touched upon a concern to which the Court (and Dethridge in particular) would return in later cases: the need to balance the employment-promoting effects of high wages (due to the spending of the workers) against their employment-destroying effects (due to the costs borne by employers). It was generally recognised, said Dethridge,

10.1 Applying the cut

The decision to cut wages did not immediately take effect across the totality of the Court's awards. Except for the applicants in the main proceedings, employers had to apply for the reduction clause to be inserted into their awards. Such applications were being made throughout 1931, and a set of applications was granted as late as January 1932. I do not know the numbers of workers subject to the wage cut at specific times, but clearly the process of enforcing it was protracted.

There were a number of instances in which the reductions in the price index took it below the levels allowed for in the existing adjustment tables. By inserting new bands of index numbers, the Court allowed the basic wage to fall below the previous minima. There were also cases where the Court was asked by employers to insert automatic-adjustment clauses into awards which lacked them. These were awards in which the adjustment clauses had been omitted by agreement. In one such case, for storemen and packers, Beeby refused to insert an adjustment clause on the ground that the agreed wage rates may have reflected the absence of an adjustment provision (Storemen and Packers' case 30 CAR 467). In another, about maltsters, Dethridge said: ‘The employers thought it convenient not to have the adjustment clause, and, throughout the last ten or eleven years, the parties, thinking it suitable for themselves, have done without an adjustment clause in their agreements or awards, and I do not think that I should introduce one now to the detriment of the employees’ (Variation—Maltsters (Victorian Award) 30 CAR 702).

What did it mean to be Lihirian? This was the question that emerged most strongly for me during my fieldwork in Lihir. Life on Mahur continually turned on a number of key values: of respect (sio) for leaders, for relatives, for adults. Work or duty (pniez) was considered to be morally virtuous, and the proper basis for all gains of status and capital. Finally, nurturance (pniari, owo, ertnin) of children, visitors, pigs and gardens and its reciprocation through feasting was a constitutive component of social life. Christianity promoted love (leimuli) as core to families and social relationships. These key values promote the ideals of relational conduct in Lihir, ideals that fit well with relational personhood as the root metaphor of Melanesian sociality.

Yet as I have shown throughout this book, the ideals of moral relational conduct are often not met. Persons in Lihir have a sense of core self, of personality, and often act with themselves in mind. This leads to conflict and to charges of selfishness or greed, and censure of movement in the case of piot. Despite such conflict, people continue to practice autonomy, while others assert their relational ties through the medium of complaint and criticism.

This view of relationships requires a view of the person as an active subject, and this was my experience of persons in Lihir.

5.1 The Court

Powers became President of the Commonwealth Court of Conciliation and Arbitration on 1 July 1921. (He left the Court in April 1920, but returned as Deputy President in February 1921.) Two other judges of the High Court—Duffy and Rich—were appointed Deputy Presidents in August 1921. They resigned in June 1922 and two lawyers who were not High Court Judges—Quick and Webb—were appointed as Deputy Presidents. From then until 1926, the members of the Court were Powers, Quick, and Webb. In June 1926, Powers relinquished his position, and the Court was reconstituted in response to a High Court requirement that judicial functions be exercised only by judges with life tenure. A chief justice (Dethridge) and two judges (Lukin and Beeby) were appointed. Another judge (Drake-Brockman) was appointed in April 1927. Neither Quick nor Webb was given judicial status in the reconstituted Court. Webb resigned as Deputy President in February 1927. Quick remained until 1930 so as to complete the making of awards for the railway industry.

A reading of the Commonwealth Arbitration Reports gives the impression of a rising work load for the Court. Various industries came under its awards for the first time, partly as a consequence of High Court decisions about the Arbitration Court's jurisdiction (Kirby and Creighton 2004). Railways and printing were perhaps the most important. Speaking at the welcome to Drake-Brockman in April 1927, Attorney-General Latham referred to the rise in the number of matters pending as the reason for the additional appointment.

Although many governments are now committed to reducing the number and rigidity of regulations that are thought to stifle economic innovation and competition, it is widely expected that the regulatory environment for agricultural producers and processors will become more complex in the coming years (OECD 1997). Income growth is fuelling demand for food safety and environmental amenities, and media coverage, such as reports on dioxin in European animal feed or on the effects of Bt corn on North American monarch butterfly populations, amplifies the political salience of this demand. On the ‘supply side’ of regulatory activity, officials who devise sanitary and phytosanitary (SPS) measures - regulations that sometimes restrict imports in order to reduce risks to animal, plant, and human health - face additional challenges. These officials are now bound by the multilateral legal obligations found in the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) of the World Trade Organization (WTO) which came into force in January 1995. By drawing attention to policies that were generally ignored (even by trade specialists) until the Uruguay Round, the SPS Agreement has had the intended effect of prompting widespread review of SPS measures by regulators and lawyers in both importing and exporting countries, and the unintended effect of begetting policy re-evaluation by others.

Economists in particular have started to scrutinise SPS policies in much the same way that they previously examined other risk-reducing measures, including asbestos removal or toxic waste cleanups. Taken together, these developments have substantially changed the parameters for regulating imports of agricultural products from the time when the maxim “when in doubt, keep it out” was viewed as an appropriate decision rule.

This chapter examines the choice among sanitary and phytosanitary policies of those that are least trade-distorting. In addressing this choice, we highlight the potential for complementarity between science-based risk assessment and economic-based cost/benefit analysis in regulatory decision processes. We make the argument for fuller integration of these approaches than is often the case. Integrating risk assessment and cost/benefit analysis simultaneously into the regulatory process provides decision makers with a rich two-dimensional nexus of information. It is too optimistic to expect that for all regulatory decisions a fully optimal policy choice can be achieved when only a single dimension of information is considered. The two-dimensional risk assessment-economic analysis nexus gives decision makers an opportunity to evaluate the trade-offs that are faced when they choose among alternative regulatory measures. The criterion “least trade-restrictive” (or more generally, “least trade-distorting”) is one that policy makers can apply to these decisions. It is not a complete decision-making rule, nor is it the only criterion on which policy options might be ranked, but least trade-restrictive is a criterion mandated by the WTO for consideration in SPS policy determination.

The chapter is organised as follows. The next section provides a brief discussion of the concept of a policy being least trade-distorting. We follow by summarising results from two case studies that were re-analysed using somewhat different approaches than those utilised in regulatory decisions. The possibility for either convergence or divergence between the inferences drawn from risk assessment versus cost/benefit analysis is demonstrated for the case of regulation of avocados entering the United States from Mexico.