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Tuesday, 8 May 1973
Page: 1808


The CHAIRMAN - Order! Could we have a copy of the amendment?


Mr WENTWORTH - Yes, I have a copy of the amendment.


Mr Clyde Cameron (HINDMARSH, SOUTH AUSTRALIA) - What do you think I am?


Mr WENTWORTH - Out of respect for the Chair, ] will not reply to the question: What do you think I am?'


The CHAIRMAN - Order! The Chair would like a copy of the amendment. The Minister has one but the Chair has not.


Mr WENTWORTH - The purpose of this amendment is simply to declare a position which exists and make certain that the courts, especially in interpreting section 142 of the Act, are aware of our international obligations. Only a few weeks ago the Government, without any notification to this Parliament, ratified Convention No. 87 of the International Labour Organisation. This Convention is entitled 'Convention concerning Freedom of Association and Protection of the Right to Organise'. Article 16 of that Convention states:

A Member which has ratified this convention-

That includes Australia - may denounce it after the expiration of ten years. . . . Each member which has ratified this convention and which does not, within the year following the expiration of the period of ten years mentioned in the preceding paragraph, exercise the right of denunciation provided for in this Article, will be bound for another period of ten years . . . Australia has undertaken through its Government, without thinking about what it was doing, to be bound by this Convention. Pacta servanda sunt - obligations should be kept. We have undertaken certain obligations. I do not think that the Government understood the full import of what it was doing but, unhappily and without consulting this Parliament, precipitately the Government undertook those obligations. I want to read from Article 2 of this Convention which is a binding obligation upon Australia in terms of what the Government has done. Article 2 states:

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.

This is a binding obligation which, without consideration and by some precipitate action, the Government undertook on behalf of Australia. It is binding now. I want honourable members to consider how this affects section 142 of the Conciliation and Arbitration Act which provides:

The Registrar shall, unless in all the circumstances he thinks it undesirable so to do, refuse to register any association as an organisation if an organisation, to which the members of the association might conveniently belong, has already been registered.

This means that if there is a union in the field, dissatisfied members who dislike the union, for example, like the Minister who disliked the Australian Workers Union in his time, will be able and will have the right under this Convention which is binding on Australia to establish another union. Any law which would be repugnant to this Convention would be, I think, one of which this Parliament would be heartily ashamed, lt is true that section 142 is permissive and not mandatory in a sense. It says that the Registrar shall refuse to register but it gives him an out. It then says:

.   . unless in all the circumstances he thinks it undesirable so to do, . . .

A new circumstance has now been brought before the Registrar. The new circumstance is that Australia is now a party to and is bound by Convention No. 87 of the International Labour Organisation. I repeat that Australia is bound by it. When any group comes before the Registrar and says: 'We want to be registered', it is mandatory now for him to say: 'I will abide by the provisions of Article 2". I will read Article 2 again for the edification of the Minister for Labour (Mr Clyde Cameron) and for the information of honourable members, lt says:

Workers and employer-., without any 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.

Of course, this has never been brought to the attention of the Registrar because, as I understand it, in no application that has yet been before him was Australia a signatory and a party to this Convention. The circumstances are now changed. They were changed by the precipitate action of this Government, taken without consulting Parliament and without, [ believe, any understanding of its true consequences, but the Convention is now binding on Australia. When any organisation or group of employees comes before the Registrar and asks for registration he must, I think, say: Yes, you are entitled to be registered because I recognise now the special circumstances'. There could scarcely be circumstances more special. The special circumstances are that the Commonwealth of Australia is now bound by a solemn international obligation which it has ratified and undertaken. Therefore the Registrar, whether he likes it or not, must say: "This group must be registered as an organisation'. A quibble might be raised that the group can be registered as an organisation but not as an organisation under this Act. That is a quibble, but if it is good in law the High Court will tell us that it is good in law. It seems to me that the Government will be dishonest if it refuses to allow to be put into the AC t simple injunction to all courts, tribunals and commissions established under the Act that in all their decisions and proceedings they shall have regard to the solemn international obligations of the Commonwealth of Australia, and shall not give any award or decision which would be in violation of those undertakings. Surely it is unexceptionable to put into the Act the simple declaration that the Commonwealth Government proposes to keep its word. Honourable members can argue about the legal effect which the High Court may have to determine. These are arguments appropriate to the High Court and not to the Parliament but surely there can be no hesitation in putting into the Act this declaration. That is all that is in the amendment I have moved. I do not say in the amendment that it has any specific consequences although I have outlined to the House what 1 believe those consequences would be. However, that is a matter which the High Court could have to determine in due course. Whatever the consequences are-







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