Human Rights In Australia by
Doctor Mark Cooray
15. Abuse Of Rights
| 15.0 | Introduction |
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| 15.1 | Political Misuse 0f Rights |
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| 15.2 | Abuse Of Union Power |
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| 15.3 | Union Attack On Freedom Of Association |
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| 15.4 | Freedom Of Assembly And The Intimidation Of Society |
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| 15.5 | Radical Attitudes To Personal And Political Liberties |
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Introduction
This book has been so far concerned with the threats to
human rights arising from governmental action. There is
another source of grave danger to these rights. The
non-appreciation of this will lead to erosion of human
freedom. That source is the abuse of rights.
One of the important conditions for sustaining a system of
liberties is the absence of widespread abuse of liberty
leading to disorder in the community. Without basic order,
the liberty of the subject is at peril. In their book, The Protection of Liberty (Oxford, 1982) p 371 N Stevens and D C M Yardley state:
Society, like the natural universe, must have an order. A
failure of that order in the natural universe could, at
worst, be disastrous; at best it would result in
unpredictable change. It is seemingly in the nature of human
beings that disorder in society is considered undesirable.
It is to be expected, then, that society will seek to
protect the established order and permit such change only as
is inherently provided for in that order. It is this,
perhaps, which creates the dilemma referred to by one author
where the participants in a political demonstration are
'trying to achieve by weight of numbers what they cannot
immediately achieve by the ballot box'.
15.1 Political Misuse 0f Rights
It is one of the ironies of modern democracy that the most
vociferous supporters of personal liberty and political
rights are those who seek to establish political systems
which by their nature cannot tolerate these freedoms. These
are people who cynically take advantage of the liberties
provided by democratic rule in order to destabilise and
eventually destroy such rule.
An autocratic society is maintained by official coercion
backed by the force of arms. On the other hand a liberal
society cannot be protected by its laws and its police force
alone. In order to subsist a liberal order needs a popular
commitment to its values. A system of criminal justice which
is concerned with procedural fairness, certainty of guilt
before punishment, and humane treatment of suspects and
offenders is not designed to combat large scale or organised
law-breaking. A society which gives paramount consideration
to civil liberties is relatively stultified in its capacity
to prevent excesses and to maintain order. The strength of
such a society is therefore not its coercive power but the
responsibility of its members. Where responsibility is
lacking one of two things will happen. The society will
gradually lose control or the state will be encouraged into
curbing liberties and returning to despotism. It is
therefore not incorrect to say that the degree of freedom
which obtains in a society will be proportionate to the
responsibility, tolerance and restraint shown by its
members.
One of the problems faced by liberal societies is that they
are highly vulnerable to subversion from within. Persons who
are unwilling or unable to promote change by popular
acceptance resort to the exploitation of the weaknesses in
such societies. In Australia for example, a minority of
peace activists endeavour to subvert the national security
interests by trespassing and physically obstructing defence
installations and arrangements. Development works are
obstructed in the name of protecting the environment.
Industrial disputes are won by economic disruptions, the
creation of disorder and even violence. In most such
instances, the activists in fact resort to deliberate,
organised and large scale law-breaking in order to achieve
political ends. In an autocratic state, such tactics are
impossible for they invite swift and brutal repression. In a
democracy concerned with due process, it is difficult if not
impossible to restrain such measures by regular procedures.
The result is often the intimidation of the society as a
whole into submission to minority views.
15.2 Abuse Of Union Power
The recent miners' dispute in England is a vivid
illustration of the abuse of rights to subvert the
democratic processes and the interests and concerns of the
community at large. A government with an electoral mandate
to trim the size of government, proposed (through its mining
monopoly) the closure of certain uneconomical mines. The
National Union of Miners without ascertained support of a
majority of its members embarked on a protracted boycott of
all mines. When growing numbers of miners sought to exercise
their legal right to work, the union leadership organized
violent picketing, obstruction and rioting in an attempt to
prevent miners from going to work. This led to phenomenal
property damage, injuries to hundreds, and even death to one
person (when a concrete block was dropped on a car carrying
a working miner). The rights of the working miners were
enforceable only by the deployment of thousands of policemen
who were compelled to use their maximum resources and powers
under the law. The resulting confrontations and clashes
produced a situation of a country under siege. With media
attention focussed on specific instances of the use of
police force, the campaign generated immense pressure on a
democratic government to change a fundamental plank of its
policy. All this while the union leadership stubbornly
refused to call a ballot of its members. Fortunately however
the steadfast public support for the government's resolve
paid dividends as the campaign collapsed through internal
revolt.
There were similarities in the recent Queensland power
dispute, which arose out of the attempt by the electrical
workers union to retain its monopoly of labour, in the
electrical industry. Some of the legislative measures taken
by the Queensland government are undemocratic and cannot be
condoned. However the fact must not be forgotten that the
crisis was precipitated by the morally unjustified claims
and tactics of the power workers who were victimising the
population as a whole for their parochial and monopolistic
ends. The crisis has now led to a national conspiracy among
trade unions to intimidate the Queensland government by
holding to ransom the people of Queensland through
blockades, secondary boycotts and disturbances.
The entire industrial relations system of Australia is
characterised by the licence it provides to the unions to
engage in illegal activity with impunity. Whilst the system
enforces its decisions against employers, the unions are
permitted to defy binding decisions through continued
industrial action. The current public service bans by unions
refusing to accept an arbitration ruling is yet another
example of illegal actions causing damage to the public
interests and private citizens who have no part in the
dispute. Perhaps the most startling symptom of the
industrial crisis is the continuing capacity of the BLF to
defy the law and norms of civilized conduct in order to
achieve its self interest.
The industrial relations scene in Australia proves that the
law applicable to union activity is not what is in the
statute book but that small part of it which can be enforced
against the union might. The union excesses are perpetrated
and justified (by those who bother to justify it) by
reference to the fundamental freedom of association (which
is said to include the right to form trade unions) and the
freedoms of expression and assembly. Although these rights
are subject to universally accepted restrictions and
theoretically such restrictions are applicable to unions as
well. In practice the scope of these freedoms as enjoyed by
the unions are circumscribed only by the limits of their
economic, political and physical clout.
15.3 Union Attack On Freedom Of Association
The unions have in fact perverted the right of association
by enforcing the closed shop. The closed shop constitutes an
essential precondition of modern union power. In return for
the promise of industrial peace, unions have extracted from
employers the undertaking to exclude non members from
employment. In some instances, even government organisations
have become privy to such arrangements (eg the statutory
grant of labour monopoly to the Waterside Workers
Federation). The outcome of these arrangements is that they
suppress an integral component of the freedom of
association, which is the freedom not to associate. It means
that a person who exercises his human right not to associate
with another person, loses his right to be considered for
employment.
The closed shop is crucial to union power, as without it,
its monopoly of labour is lost. Without such monopoly, the
unions are compelled to resort to means available to
ordinary citizens viz persuasion and mobilising of support
for joint action by democratic decisions. Closed shop
enables the union leadership to secure obedience by threat
of dismissal from membership which in effect means loss of
employment. Through the closed shop the union in effect
becomes a monopoly contractor of labour. Unions have always
maintained that closed shop arrangements are part and parcel
of the freedom to form and join trade unions. However in a
recent judgement, the European Court of Human Rights decided
that the dismissal of three British Rail employees for
refusing to join a monopoly trade union constituted a
violation of Article 11 the European Convention on Human
Rights which guaranteed the right to form and join a trade
union. Young James and Webster UK (1980) ECHR 20. The Court,
by a majority of l8 to 3 decided that such a dismissal
involving a loss of livelihood amounted to "a form of
compulsion which strikes at the very substance of the
freedom guaranteed by Article 11". It also decided that even
the fact that 95 per cent of British Rail employees were
already members of the unions did not justify the imposition
of a closed shop.
Despite such developments in Europe, the Australian
industrial relations system continues to recognise and
encourage the closed shop - an institution which is not
merely an abuse but an outright negation of the freedom of
association. The institutionalised closed shop is but one
aspect of the abuse of this freedom. Even in the absence of
formal closed shop arrangements, some unions secure monopoly
status by intimidating non-members. Even within the unions,
democracy is often non-existent owing to intimidation, vote
rigging and other forms of corruption. Although, most of
these practices are unlawful or in breach of contractual
terms, the union bosses remain immune from the law of the
land owing to the industrial power they wield.
15.4 Freedom Of Assembly And The Intimidation Of Society
Another freedom frequently resorted to and abused by trade
unions as well as other special interest organisations, is
the freedom of assembly. Under the guise of this freedom
these organisations stage demonstrations, blockades and
obstructions which transgress the law of the land, create
disorder and cause immense public inconvenience. Creation of
public disorder has become a carefully cultivated weapon of
political action in modern democracies. It is an effective
weapon as democratic governments are sensitive to charges of
repression and therefore try to avoid confrontational
situations. There is no doubt that the fear of public
disturbance influences decisions of governments even on
issues where substantial majorities support government
positions. The emergence of the disorderly demonstration as
an effective political weapon has been assisted by the
present day scale of media coverage. This fact is
illustrated by Stevens and Yardley 'Protection of Liberty' op cit p 39 with reference to Britain.
The generally lukewarm response which greeted the TUC 'day
of action' in 1981 and, with some relatively minor
exceptions, the 'Right To Work' March from Liverpool to
London in the same year, are evidence of the lack of concern
- even apathy - which even quite large demonstrations
nowadays arouse. However, put into the television screens
films of pitched street battles between demonstrators and
police (as seen in 1981 in Manchester and Liverpool), or
between police and other large groups, especially youths (as in Brixton), and the reaction is virtually guaranteed.
The impact of media coverage, particularly visual reporting,
cannot be underestimated. Generally speaking, scenes of
demonstrators being beaten back by police or being carried
away to detention can be a severe embarrassment to
democratic governments sensitive to public opinion. The
object of the modern demonstration therefore is to create a
disturbance sufficient to provoke violence or a physical
confrontation with authority. The mastery with which
demonstrations are organised and stage managed reveal the
extent to which minority political groups value this form of
political action. The dilemma for the democratic government
is summed up in the words of Lord Scarman in the Report on the Inquiry into the Red Lion Disorders of 1974, quoted in
Stevens and Yardley, 'The Protection of Liberty' op cit pp 39-40:
Amongst our fundamental human rights there are, without
doubt, the rights of peaceful assembly and public protest,
and the right to public order and tranquillity. Civilised
living collapses - it is obvious - if public protest becomes
violent protest or public order degenerates into the
quietism imposed by successful oppression. But the problem
is more complex than a choice between two extremes - one, a
right to protest whenever and wherever you will, and the
other, a right to continuous calm upon our streets unruffled
by the noise and obstructive pressure of the protesting
procession. A balance has to be struck, a compromise found,
that will accommodate the exercise of the right to protest
within a framework of public order which enables ordinary
citizens, who are not protesting, to go about their business
and pleasure without obstruction, or inconvenience. The fact
that those who at any time are concerned to secure the
tranquillity of the streets are likely to be the majority
must not lead us to deny the protesters their opportunity to
march: the fact that the protesters are desperately sincere
and are exercising a fundamental human right must not lead
us to overlook the rights of the majority.
The right to peaceful protest has been a crucial democratic
freedom. It has been and is particularly important to people
who have no wealth, power or influence to broadcast their
views through the expensive channels of mass communication.
A peaceful protest attracts wider attention than a meeting
in a hall. However in modern times the character of a public
demonstration has changed radically. It is now a powerful
weapon of intimidation capable of affecting public policy
otherwise than by democratic means. For this purpose the
emphasis is laid on disturbance and disorder created by
wilful violations of the law.
It cannot be over emphasised that such political action is
possible only in a liberal society. Mass arrests, detentions
and trials of expedience are unacceptable in such a society.
In any case the investigatory and adjudicatory processes
with their emphasis on fairness and due process are
ill-suited for mass scale administration of justice. As such
the likelihood of unrest becomes a potent factor in the
determination of public policy. Few governments would wish
to become embroiled in such confrontations. In Australia the
capacity of left wing groups to stage embarrassing public
demonstrations has undoubtedly played a part in making the
Hawke Government compromise the national interest on such
issues as uranium mining and defence cooperation.
The freedoms of expression, assembly and association are
vital for the functioning of democracy. Without these
freedoms peaceful and reasonable dialogue on public issues
is impossible. However the abuse of these freedoms also can
destroy the conditions necessary for democratic decision
making.
15.5 Radical Attitudes To Personal And Political Liberties
It is not surprising that personal liberties and political
rights hold the greatest value to those who are outside the
political mainstream of a democracy. For this reason those
who agitate for radical reform of the established order are
the most anxious to assert these rights and to extend them.
What is unfortunate is that when these groups achieve their
objectives and gain political power, they quickly forget
their previous commitment to freedoms. Marxist revolutionary
movements throughout the world are most vocal about
violations of civil liberties by governments they seek to
overthrow. But each of their successes has been followed by
the total suppression of the liberties of their opponents.
There have been no exceptions to this rule and none can be
expected. The reason is that radical socialists believe in
using any means, fair or foul, for the achievement of their
objectives, and the use of civil liberties is but one such
convenient means. They do not value freedom for its own sake
or as a general virtue. They value it only to the extent of
its usefulness for gaining political power.
Some modern radicals in the western world proclaim their
commitment to political freedom accompanied by the
elimination of inequities in society. They assume that once
material equality is achieved a more meaningful system of
political liberty will prevail. The crucial issue is whether
political freedoms would be tolerated by such radicals if it
leads to a popular rejection of their idealistic order. The
radicals believe that if private property is abolished, and
equality is achieved, then perfect conditions will prevail
and no one would wish to change such an order. Consequently
they believe that coercion and denial of political freedom
would be unnecessary. However every experiment in the
equalisation of wealth has proved a failure in creating
satisfaction in the community. And every such experiment has
had to be maintained by the most brutal suppression of
liberty. The modern radical theories will work only if the
elimination of private wealth will miraculously transform
the nature of man. Amongst angels there is no need for law.
However if the angels decide to become mere humans, will the
utopians permit it? The lesson of history is that they will
not.
It is therefore important to be aware of the cynical use of
human rights by radical socialists bent on destroying human
freedom. To be aware of this threat does not mean that such
rights should be denied to them, for that would amount to an
immediate negation of the principles on which our society is
founded, and as such would be self defeating. However such
awareness is an essential part of the vigilance necessary to
defend democracy against destruction from within. The
ultimate safeguard against the undermining of liberty is
public opinion itself. Enlightened public opinion tends to
discourage such attempts and to strengthen the effectiveness
of the laws against abuse.
In his book, 'The Two Concepts of the Rule of Law', (Indianapolis, 1973) p 157 Gottfried Dietze warned the West German nation of the danger it faces in moving from Hitler's fascism to extreme permissiveness. In the preface to his book, he summed up his message with the words:
"The greater the regulation by the government, the greater the danger to freedom; the less regulation, the more imperative the strict enforcement of the laws".
He further asserted that Dicey
"probably would have condemned today's negation of the legal
order through improper permissiveness, which increasingly
has been jeopardizing constitutional government".
In the context of modern politics, the stricter enforcement
of the law requires firm public support. The illegal miners
strike in Britain which threatened the very foundations of
British democracy and justice was overcome not merely by the
numbers of policemen deployed but by the weight of public opinion. The British nation stood by the rule of law even though it was politically divided on the issue of closing
the mines. They demonstrated thereby, that the ultimate
guarantors of liberty under the law are the people themselves.