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Thursday, 25 August 1983
Page: 265


Mr ROCHER(10.45) —Since the decision of the High Court of Australia in the Franklin River Dam case, the significance of Australia's international treaties and conventions has taken on a new importance. The implications arising out of that case and the earlier Koowarta decision for constitutional federalism are, to put it mildly, enormous. To those who may be smugly satisfied with the outcomes of those cases, I extend a friendly warning. Any Commonwealth government, present and future, will enjoy an ability to regulate and control by legislation activities not previously considered to be the responsibility of a Commonwealth government and, more appropriately, considered to be the responsibility of State governments. Nowhere are the implications more important than in the area of industrial relations.

I want to outline some of the contradictions in the attitudes of the Australian Labor Party and its Prime Minister (Mr Hawke) to the whole question of freedom and implications for unionism. Earlier this year the Prime Minister, for the first time since achieving that high office, addressed the International Labour Organisation, the ILO. He said, amongst other things:

The fundamental right of freedom of association is not something conditional.

I hope to demonstrate that the Prime Minister did not really mean that and that, to him, freedom of association is subject to conditions and limitations. A couple of sentences later, in the same speech, the Prime Minister said;

Freedom is indivisible.

Of course, that is not an original phrase by any means, nor is it one that was ever meant to be taken literally, I suppose, although we all pay lip service to it from time to time. What is the freedom of association that is precious to the Prime Minister and, may I add, to most others? To judge from the Eighty-seventh Convention of the ILO, the Freedom of Association and Protection of the Right to Organise Convention, freedom of association principally concerns the rights of workers to join unions and of employers to join employer's associations. The operative words in Article 2 state:

Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.

The word 'organisation' is defined as 'any organisation of workers or of employers for furthering and defending the interests of workers or of employers' . That is all right as far as it goes, but it probably does not go very far. We must recognise that the ILO is a specialist organisation and that that is a specialised definition. Freedom of association means much more than just being free to join a trade union, a professional association or whatever. I am sure everyone will agree that freedom of association must apply to sports clubs, political parties, service clubs, churches and so on just as much as it does to employer-related bodies. I do not propose to suggest that anyone in this chamber would think otherwise. This view of freedom of association is fully supported by the way the matter is dealt with by the International Covenant on Civil and Political Rights. Clause 1 of Article 22 states:

Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

In other words, the right to join trade unions is treated as an important sub- species of a general right to freedom of association. Article 11 of the European Convention on Human Rights, to which I will refer again shortly, uses almost identical language. For the moment I return to the Eighty-seventh ILO Convention and I repeat the words:

Workers and employers, without distinction whatsoever, shall have the right to establish, and, subject only to the rules of the organisation concerned, to join , organisations of their own choosing without previous authorisation.

It seems clear that the phrase 'without previous authorisation' refers to any necessity to obtain permission from any third party, whether government, employer, government agency or unions before establishing a new, or joining an existing, organisation. The phrase subject only to the rules of the organisation concerned, which gives each organisation the exclusive right to decide, by its own internal constitutional procedures, whether it will accept an applicant as its member. We are now left with what I believe to be the core of the clause-it certainly is in this context-'the right to establish and to join organisations of their own choosing'.

When faced with the implication of this phrase the Prime Minister (Mr Hawke) suddenly finds that the fundamental right of freedom of association is not unconditional and that freedom is divisible after all. The plain meaning of the phrase is that if one does not like one union, one has the right to join another . If the second union will not have that person, as is its right, that person has the right, if he or she wants to, to form another union with like-minded people-a union that may suit that person better; in other words, there should be no closed shop. But there is an even more fundamental implication of freedom of association. Freedom of association requires a corresponding freedom not to associate. There is no freedom of association if one is free to join an organisation but is not free to stay outside that organisation. That is compulsion or, at very best, an Orwellian kind of freedom.

The judges of the European Human Rights Court showed their awareness of just this point in a case in 1981 concerning three British railway workers who were dismissed because they would not become members of the closed shop union. The court held that this was a violation of their rights under Article 11 of the European Convention of Human Rights. Six of the judges added a concurring note to the main verdict. In their opinion the Convention gives an absolute right not to belong to a union for just the reason I mentioned a moment ago; that is, that freedom of association requires freedom not to associate if it is to mean anything. Article 11 of the Human Rights Convention states:

Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

Apart from the reference to freedom of assembly these are the exact words in the International Covenant on Civil and Political Rights. I hope that, by quoting from those various covenants and bodies, by now I have shown that any form of compulsory unionism and closed shop contravenes the spirit and the letter of the Freedom of Association Convention and the ILO Convention No. 87 of the ILO charter. It is also explained by the International Covenant on Civil and Political Rights. To that list we may add the United Nations Declaration of Human Rights. This is a point that should be considered very carefully by those on the other side of this chamber who are proposing an Australian bill of rights . Such a bill would, to some extent, be dependent for its constitutional and international validity on international conventions such as those that I have mentioned. Observances of the freedom of association provisions in these conventions would require massive changes to our industrial relations and arbitration systems-changes which, I might add, would do the country a great deal of good but which may be very unwelcome to the vested interests of the trade union movement.

Freedom of association is meaningless without concomitant freedom to choose the terms and conditions of the association. Yet this Government remains committed to compulsory unionism in all its Australian forms. It is clear that the Prime Minister was only engaging in rhetorical flourishes and not meaningful speech when he told the ILO about the unconditional right to freedom of association and the indivisibility of freedom. The whole point of freedom of association is that no one should be compelled to join an association against his or her will. Given these international precedents and conventions, some of which have been ratified by Australia, I am sure honourable members opposite will identify the scope for future governments-not necessarily of their own ideological bent-to rely on external affairs powers to legislate in ways which may not please them or their supporters.


Mr SPEAKER —Order! The honourable member's time has expired.