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'.
And the third was from a rather long and somewhat
boring rendition by the then President of the National
- '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
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
I believe great strides have been made in changing
attitudes, but many workplaces remain stultified by
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
- "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
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
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
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
Well I think the High Court has got that calculation
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
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.