Standing Fast

Keynote Address: "Rights"---Right Or Wrong?

Ian McLachlan, MP

I've had cause to look back over the first forum of the Society which was held on 28 February 1986. The views that were put at that meeting caused such consternation in the Federal Parliament that some of us who had been involved thought it would be nationally irresponsible to hold a second meeting and so disrupt the country.

However, there have now been 12 such meetings of this forward thinking Society which, in those early days, was regarded not in those terms at all but as a damnable pursuer of the unreasonable.

The major theme at that conference was union power---in fact the abuse of union power at that time gave rise to the Society.

I thought it would be worthwhile looking back for a moment at just how unreasonable were the contributors at the first meeting of the Society in pursuing their thoughts and experiences and offering them for consumption.

There were a number of wise things said at the inaugural forum. I wish to quote but three.

The first is from a contribution by Wayne Gilbert who was General Manager of the South East Queensland Electricity Board and who had fought and won a dispute on behalf of the Government of Queensland in 1985.

He said that at the end of that dispute 'the Government empowered me to enter into individual personal contracts with the employees'.

'Essentially they are', he said 'common law contracts between us and the individual employee, legally enforceable, which provide for a prohibition of strike, and no union preference under any circumstances'.

A similar system is now in operation in New Zealand.

The second was from the late Gerry Gutman, in a quite fascinating offering upon the infamous and now discredited Hancock Report which outlined the future direction for industrial relations in Australia. He said 'a further reform measure would be to give encouragement to the creation of unions on a workplace or company basis'.

Quite so.

And the third was from a rather long and somewhat boring rendition by the then President of the National Farmers' Federation.

'Implicit in this proposal is the eventual re-establishment of the employment contract between employer and employee, enforceable at law, and able to be prosecuted by the existing inspectorate machinery'.

All this good sense constituted a hanging offence back in 1986. Seven years later it has become the very essence of the debate. In many cases it has become the very essence of the practice.

Why were we saying back then we should bring negotiations to the workplace?

It was of course about changing the attitudes of people. But how were we to go about encouraging those changes?

By making the work more rewarding. And how do you do that? By involving the employees, by inviting them to take responsibility for their actions and by engaging them in the negotiations over their pay and conditions, for example, so they become a vital part of the operation.

If we want this country to be better there must be involvement. How can we do that unless there is participation in the designing and in the doing?

Everyone may not fly to the top, but every single person will perform better if they feel part of the plot.

Those three offerings from 1986 were in some respects close to the general policies which the Government has appropriated from this organisation and the Coalition.

I was delighted, in a way, that the Prime Minister has been recently indulging in a degree of grand larceny.

As John Howard observed, perhaps we should be flattered.

Maybe you too should be flattered that he has finally absorbed so many of the ideas that were so presciently put at these gatherings.

We could be flattered until we realise of course that two seminal points of the Government's policy differ from your speakers' offerings.

We only have to look back as far as last year to see how this Government fortified a privileged position for the unions. The changes to the Industrial Relations Act legitimised only enterprise bargains in which unions were a party. This prevented employees in unionised workplaces reaching bargains with which their unions disagreed and excised from the system the majority of workers in non-unionised private sector enterprises.

There is no doubt that the workplace bargaining envisaged by the Prime Minister will be under some form of extended compulsion in trade union membership---not workplace union membership as was advocated so long ago at your inaugural seminar.

I believe great strides have been made in changing attitudes, but many workplaces remain stultified by the rules.

Unionism as we know continues to lose favour. The thrust has become one of recreating some compulsion by arrangement with the Government because trade unions have not been able to stand the test of the market place.

This compulsion was once achieved by coercion, that is, through compulsory membership of craft unions.

Natural attrition has driven much of this change---trade union membership in non government business is now, for example, under 30 per cent.

But union membership should not be reducing. It will I believe, go up once the structure is workplace-based and open unionism prevails.

The award system is also breaking down, and that is why the unions are moving away from their beloved central system.

There are thousands of examples in the country today where industrial "law" is out of kilter with economic reality, people have to choose and increasingly, they are choosing more flexible arrangements.

So the Government has come to the trade union's rescue.

So now you can have an enterprise arrangement if you're an employer but only if you negotiate with the trade union collective on the other side.

It is collective bargaining on the one hand and a single enterprise negotiation on the other and a bit one-sided I would have thought.

It won't work of course, at least not in the sense of increased productivity and performance. Some industry organisations have already said so and it would be even better if more of them did.

The position that trade unions achieved for themselves, diminishing but not gone, was a special right, a privilege whereby they were safe from attack by many of those that they had wounded.

They of course attained that special position by their strength which was achieved to some extent on merit, to some extent by compulsion and to some extent by the consistent failure of others to ensure everyone abided by all the rules of the industrial relations system.

In 1977 a number of new clauses were added to the Trade Practices Act, especially sections 45 D and E which outlawed secondary boycotts and made it more difficult for unions to damage other parties without bearing some penalty.

Now of course the Government will try again, as it has tried on two previous occasions, to remove those penalties and to re-create an immunity for unions. This must be resisted at all costs because it is undemocratic and unfair, and would give again a special privilege to one group and not others.

We are seeing yet another claim to such a special privilege in South Australia where two journalists have claimed that they should not be obligated by law to reveal the names of individuals who have provided information on which news stories have been based.

In one case, the journalist is already in prison arising from his unsuccessful claim to legal privilege, and the second awaits a verdict, having pleaded guilty to a charge of contempt of court rather than reveal the principal source of a series of articles which have allegedly cost the State Bank of South Australia $500,000 in lost business.

Both these journalists claimed that they had a right to protect their sources, a view not shared by the Courts. Justice Owen Dixon's eloquent view on this subject in 1940 was that there should be 'no obligation of honour, no duties of non disclosure arising from the nature of a pursuit or calling which could stand in the way of the imperative necessity of revealing the truth in the witness box'.

Although I am an occasional press correspondent, I don't believe that I should have any special place of privilege.

So those special privileges of compulsory unionism, the special "right" to escape from the rigours of sections 45 D and E, or the privilege of being able to refuse to reveal a source because journalists believe they are in a special vocation must be resisted.

All these claimed rights are quite wrong. But not all rights are wrong and I wish to talk about the right to stability and security proffered to all by the present constitutional arrangements.

I've given a great deal of thought over the last six or nine months to the matter of our Constitutional ties to the British Monarchy. Not because I think that it was something that needed changing, but because the issue had been raised and now has a head of steam. So the matter is to be addressed.

Why do some wish to change to a Republic?

For those who do, there are presumably a number of reasons. Is it because they think it will establish further our national identity and independence and self reliance?

Or is it to give ourselves confidence to face the future or to make those of us who've come from other countries in recent times feel more secure? Or to further fit in with Asia and to make them feel more comfortable?

Or is it because they believe the 'system' or the Monarchy is an anachronism and has broken down?

Have they discovered some cultural or Constitutional shortfall?

I am not convinced by any of these arguments because I believe there is a risk that the unchallenged stability and security of the past will be threatened.

I discern on this issue much greater consternation among supporters of a Constitutional Monarchy than I do from those supporting change. Much more emotion too.

Our Constitutional Monarchy is not damaged. It's not an institution that has even been brought into disrepute.

Not in any way at any time. Even in 1975, the vitriol was against particular people but not those Constitutional arrangements.

Now there is a move to change them.

I am for changing the industrial relations system because it is a damaged system which isn't working properly. I am not for forcing change, but for encouraging change.

When contemplating a change to the Constitution under which we have lived for 93 years and as we approach the celebration of its centenary, we should proceed with very great caution indeed.

I ask you, where is the groundswell of opinion that has given rise to the promotion of these changes?

How shall we ensure that the stability and external security of the past can be maintained if we were to make those changes, whatever they may be?

How can we be sure that our almost invisible threads to the United Kingdom, if broken, would not mean less external security?

How can we be sure that in spelling out the reserve powers, hitherto unpublished, we won't dispel some of the mystery which has allowed them to work so well.

When the Crown does not own the land, who will own it?

One thing is sure---that if the republic comes, the flag will go, just as sure as night follows day.

All these things are currently settled. The question is, what good reason, what overwhelmingly good reason, do we have to risk the change?

I don't accept therefore that change to a Republic is inevitable.

But I do accept that if I were promoting that change I would say that it is inevitable.

Those good men and women who are convinced about the republican cause of course have the right to put up their ideas for change.

If these changes were to take place, they could only take place after a long democratic process.

And a single yes/no referendum will not suffice.

There should be a number of questions, probably over a period of time where a series of propositions are put to the people.

The explanations of the alternatives must be made crystal clear and both sides of the argument must be put forward.

It seems to me that, as some have already said, to disrupt, in the seven years left until the celebration of 100 years of federation, or the lead up to it, with any form of acrimonious debate on this issue would be a scar upon our country's history.

It would be a complete denial of the wonderful forethought, good sense and commonsense of those who put together that Constitution 90 odd years ago.

That cannot be allowed to happen.

Perhaps even more vexing is a most extraordinary decision of the High Court of Australia made in June last year. This decision has created a new form of land title in Australia. A new right called "native title" was thereby created over some Australian land.

In that decision, the majority of the High Court held that

"the common law of this country recognises a form of native title which, in cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands ..."

I was extremely surprised when I read that decision because a great deal of land had already been transferred in various ways to aboriginal tribal groups around Australia by the Federal Government and by various State governments.

And I was even more surprised because I knew that Aboriginals already had a right to enter, travel across, and live on much of the pastoral land of Australia, even though it had been alienated to other people in the form of pastoral leasehold land.

And I also knew they had been granted that right for the very purpose of allowing them to follow their traditional pursuits.

Apart from some mild impediments, those Aborigines have the same sorts of rights as they had before 1788. In other words, to do the things they had always been doing.

And those sorts of rights are absolutely unarguable and as they should be.

And therefore, like many people, I was astonished when a hitherto uncontemplated title suddenly popped out of the ground, so to speak.

Last year various people were of the view that the decision was not something that we should worry about. Now, many of them are extremely worried, including those who last year did not think their pastoral leases were at risk.

Of course the High Court failed to define very clearly what native title really is or how it differs from the rights I have described above.

And there is now a case proceeding in the Supreme Court in Western Australia for native title in the Kimberleys---the Barunga claim, a Mabo-style claim. That claim is against the current operating leaseholders of pastoral leases, amongst others.

The High Court says that the State Governments can extinguish native title

"by the valid exercise of their respective powers, provided any exercise of those powers is not inconsistent with the laws of the Commonwealth".

There is a fear that the States face the prospect that in extinguishing this new title, compensation may have to be paid because not to do so might contravene the Racial Discrimination Act. But only to those Aborigines who have not already had their title intentionally extinguished by the States before 1975.

The decision of 3 June 1992 has put a great deal of turmoil into the matter of who owns a great part of the land mass of Australia. It is simply not true to say that this title is a limited title---the definition is far too loose for anyone to claim so.

The High Court only specified the broad features of native title. I fail to see how a treaty could be negotiated on behalf of all aborigines in regard to those matters that could possibly be binding upon a potential claimant because it's the circumstance or continuing attachment to the land which would determine the success or otherwise of the claim. So how a few people could negotiate for everybody I fail to contemplate.

The Court has put at risk not only the unalienated Crown land including great and vast tracts of Western Australia which may be very valuable from the point of view of minerals at some time in the future. It has put at risk many of the lakes of this country which are not alienated in the technical sense. It has put title in doubt as to the Forest Commission lands of the various States, and other lands, including National Parks, that for various purposes have not been designated or alienated to other people.

And thus the national development of all of that land comes into doubt because the tenure of it is now in doubt. It will be interesting to see how the directors of some of these mining companies will sign off their accounts when they are trying to evaluate the current value of their assets.

We have a new form of title, hitherto uncontemplated by anybody who had previously designed the various land ownership systems of Australia.

Brennan J. who wrote the leading judgement on this matter in describing the parcel by parcel dispossession of Aboriginal land, upon which he based his judgement, said "their dispossession underwrote the development of the nation".

Now it is an extremely difficult matter as to how to remedy this dreadful dilemma---a dilemma which will militate against our development about which not only our mining companies and pastoral lessees are very worried, but even Japanese companies are now publicly starting to express reservations and that's something that they have strongly resisted in the past.

And to top it all off we now have some pastoral leaseholders in my State of South Australia saying to the Minister, the new title that you're offering me, the new 42 year-old title that you're offering me at the expiration of my current lease may not be as good as the old one I've got which only has 10 or so years to run.

That of course is based on the fact that it may well be that the issuing of that new title could be adjudged to be racially discriminatory under the Racial Discrimination Act as the title was issued after 1975 when that Act came into being.

But two things are patently obvious. This adventure indulged in by the High Court less than one year ago has left large tracts of Australia in a turmoil as to title and therefore in those areas, risks the stability and future development of the nation.

It is urgent that existing title be secured by some form of State and Federal legislation, or action by the High Court itself. In deciding to overturn past practice, the High Court did not take notice of its own cautionary comment on the costs and benefits of change---whether "the disturbance to be apprehended would be disproportionate to the benefit flowing from the overturning".

Well I think the High Court has got that calculation wrong.

In deciding to grant a new right it failed to take account of the immense damage it would do to the rights other Australians thought they had.

So now we have a number of positions for the aboriginal people. There are those who may have a claim to native title. There are those who have land rights. There are those who have rights granted by pastoral lease and there are those who've had their rights extinguished altogether because they happened in days gone by to live in Sydney, Melbourne or the middle of Canberra.

I would have thought there's nothing more discriminating than that.

The national development of this country depends upon a quick and fair solution to this matter. The cost of failure will be horrendous, not only in financial terms for current and future potential investors, but in terms of dashed hopes for some aborigines and many other Australians.

On occasions then, the creation of "new rights" creates many wrongs and sometimes tends to hurt in the end the very people they are designed to help. That applies to all but one of the subjects I raise with you tonight and it is the very reason for raising them.

The right of stability and security we have had bestowed upon us by our Constitutional arrangements for the last 100 years however, only proves that much forethought and good commonsense leaves nothing but benefit for those who follow.

Why HR Nicholls?

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