The scent of power is strong for Labor. So from Labor’s perspective why would you want to devalue the prize?
Why would you want to reduce the power of an in-coming Labor Government will a Bill of Rights or a Human Rights Act which could hinder its capacity to enact whatever laws it wanted?
It is not surprising that last weekend’s ALP National Conference voted against the idea.
The union movement and much of the Labor Party has no interest in a Bill of Rights because it might contain a clause enshrining freedom of association.
In the 11 years that the Howard Government has done its best to undermine freedom of association, the union movement was happy to campaign under that freedom’s umbrella.
But there is only one thing worse than not getting what you want; that’s getting it. If Australia had a Bill of Rights with a freedom-of-association clause, it would mean the closed union shop could never return. Employees would have the right to join a union of their choice or not join a union at all. Unions and their officials would have to work to attract membership and deliver benefits to members to earn their fees.
So the ALP conference put union power over individual rights. Only lip service was paid to freedom of association. Labor and unions misconceive freedom of association. They think it is a collective right that gives rights to unions. It is not. It is an individual right. It gives individuals the right to associate – or not.
Labor’s new industrial-relations policy has a major flaw. Sure, it says that if a majority of employees in a workplace do not want union representation, then they will not be forced to have it. Fine. But if a majority wants union representation then the minority would be forced to join. They would be bound by whatever the union “bargained”.
It seems we will go from one excess to the other. Under John Howard people’s rights to join unions and have unions effectively represent them have been seriously curtailed. It has enabled employers to exploit vulnerable employees. It has allowed employers to present individual employees with take-it-or-leave workplace “agreements”. It has denied many employees the right to have a union represent them.
These are important rights. They are akin to the right of legal representation. Accused people must have a right to legal counsel of their choice to prevent bullying and other unfairness on the part of the state. But people also have the right not to be represented.
There is nothing wrong with an individual workplace agreement, if that is what is wanted by an individual employee (properly informed and with reasonable access to unions).
Usually, Oppositions like the idea of a Bill of Rights to take the edge off the excesses of the Government. In the last couple of years of the Keating Government, the political right took up the cause of a Bill of Rights, only to drop it promptly when Howard came to power.
Under the Keating the politically right applauded an instrument that might allow competent judges to enshrine freedom of speech in a politically correct world. But under Howard it suddenly became an instrument through which unelected judges might trammel upon the elected Government’s power to bash the unions or an instrument which might give rights to gays, refugees and those accused under the criminal law.
It seems the pendulum is about to swing again. A few months away from a possible change in government, the party with many members who championed the rights of refugees, rights against unreasonable detention, rights against discrimination and so on, has now sadly turned away from a Bill of Rights.
No doubt, after a decade in power a Rudd Labor Government (presuming there is one), it will engage in excesses as the Howard Government has done: use of Government money to promote the party; jobs for mates; abandonment of due process; arrogance; stifling of debate; restriction of government information and abuse of power.
Former Foreign Minister Gareth Evans once said that reform of governmental processes – like freedom of information – had to be done in the first months of a new government if they were to have any chance. Now the position is worse. It appears that any proposal that might weaken the overarching power of government has to committed to well before it seems likely to take office. The mere whiff of power is enough to put the kibosh on anything that might weaken the strength of the prize.
Interestingly enough it was Labor in power in 1994 that got most miffed at the prospect of the even the modest implied right in the Constitution to some sort of freedom of political speech. Heavens. The populace might be given free rein to start attacking Labor politicians. Labor MPs talked about the need to appoint black-letter lawyers to the High Court – the very people they derided in the Menzies years.
As it happens, the court was proved right. In the 1994 case, Andrew Theophanous, a Labor politician sued over a letter to the editor of a Melbourne paper over Theophanous’s alleged maladministration of immigration. Theophanous, you may recall, later went to jail over abuse of his immigration activity.
We should have a Bill of Rights to curb the excesses of governments, as the 11 years of the Howard Government clearly demonstrate: indefinite detention for some refugees; detention without trial or prompt access to a lawyer; denial of union representation and so on.
A Bill of Rights will not be perfect, but it will make for better government, as nearly all western democracies have found. Ultimately, the people should be sovereign; not parliament. If at any stage a government does not like a court using the Bill of Rights to overturn one of its laws it can always ask the people to reinstate it by referendum
This is not entirely alien to Australia. The High Court regularly is asked to look at the validity of laws passed by the Federal Parliament under the Constitution – but usually only to see if they are within the powers laid out in the Constitution, few of which have much to do with human rights.
In the 1950s it struck down the Menzies Government’s legislation to ban the Communist Party because it went beyond the reach of the defence power. (Its obvious infringement of human rights was not an issue before the court.)
Prime Minister Robert Menzies then called a referendum to validate his law. The people, however, preferred the High Court’s view. Given another matter they might well think another way. That’s democracy. But allowing narrow majority within a narrow majority to gets its way in breach of obvious human rights (as has happened often in the past 11 years) is not.
Sadly, it seems, that is not about to change.