Australian Laws of Freedom of Association
Freedom of Association
There is no express right to freedom of association guaranteed by the Australian
Constitution. In the past decade the High Court has expressed the view that the
Constitution contains an implied freedom of communication with respect to
political matters or public affairs. There is a possibility that this implied
right could be extended to cover freedom of association (as a corollary of
freedom of communication) given that the two are so closely linked. At present,
however, such an implied right has not been extended to freedom of association.
That said, statutory provisions for freedom of association in Australia do
exist, although until recently, only at the state level. The Commonwealth
Industrial Relations Reform Act 1993 (Cth) has, however, 'internationalized'
Australian labor law, bringing it more into line with international labor
standards generally. This legislation provides a degree of protection with
regards to the right to strike (which may be regarded as an aspect of the right
to freedom of association). This Act will be discussed below.
International Standards
Another possible way in which freedom of association could be protected in
Australia would be through national application of international law (this would
be in reliance on Australia's external affairs power). To some degree this has
been done in the Industrial Relations Reform Act 1993 (Cth) which is
discussed in below. Australia has ratified international covenants and ILO
Conventions concerning freedom of association. The documents ratified include
the International Covenant on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural Rights, and ILO Convention 87 (Freedom
of Association and Protection of the Right to Organize).
National Labor Law
Recent national legislation enacted has 'internationalized' Australian labor
law. The Industrial Relations Reform Act 1993 (Cth), made radical changes
to various areas of national labor law (the Industrial Relations Act 1988
(Cth)) by using the external affairs power of the Constitution to circumvent
some of the restrictions contained in the traditional use of the labor power
contained in the Constitution. The drafters drew on North American, European and
international laws for inspiration and much of the new legislation reflects
international thinking in these areas. One area where reform has taken place is
in the area of enterprise bargaining. Prior to the enactment of the Reform Act
almost all strikes were regarded as unlawful in common law and industrial
legislation. The Reform Act changes this by giving trade unions a limited right
to strike when negotiating an enterprise agreement for a single business or
place of work. This right is based on the ILO convention and on the provisions
in the ICESCR. There is debate regarding whether the right to strike is
incorporated as part of the right to freedom of association. However, a strong
argument can be made that this is the case. ILO Convention 87 has been
interpreted by the ILO's Committee of Experts as being incompatible with a
denial of the right to strike. To this extent Australian workers have a right to
>freedom of association=.
Bibliography
Doyle, The Industrial/Political Dichotomy: The Impact of the Freedom of
Communication Cases on Industrial Law 8 AJLL 1 (1995).
McCallum, The Internationalisation of Australian Labour Law: The Industrial Relations Reform Act 1993 15 SydLR 122 (1994).
McEvoy & Owens, The Flight of Icarus: Legal Aspects of the Pilots= Dispute 3 AJLL 87 (1990).
McEvoy & Owens, On a Wing and a Prayer: The Pilots Dispute in the International Context 6 AJLL 1 (1993).
Pittard, International Labour Standards in Australia: Wages, Equal Pay, Leave and Termination of Employment 7 AJLL 1 (1994).
Vranken, Demise of the Australian Model of Labour Law in the 1990s CLLJ 1 (1994).
Vranken, Book Review 9 AJLL 1 (1996) (Reviewing Blanpain & Engles, European Labour Law (3d ed. 1995)).