Eureka! The Government Wins Again

Eureka!  The Government Wins Again

In 1854 a small group of miners staged a rebellion against the Victorian Government.  It was an armed rebellion with a strong ideological purpose.  Measured against today’s laws, it was plainly a terrorist offence.  Nevertheless, in the complex weave of Australian values, it holds an honoured place in our history and heritage. Eureka’s visible symbol is the flag of the Southern Cross.  It was sewn by the miners’ wives and partners and remains a treasured part of our history.  Now, it has become an offence for some Australians to show the Eureka flag.

This surprising result was produced by the Australian Building & Construction Commission.  The ABCC ordered the removal of the flag saying ‘The flag represents the union and gives the impression that to work on the site you need to be a union member.  This is therefore a breach of freedom of association’.

This is not only alarming, it is astonishingly stupid.  First, consider the logical process involved: The flag is understood by some as representing a union; flying the flag therefore reminds people of the existence of the union; reminding people of the existence of the union gives people the impression that they have to join the union; giving them that impression (without more) deprives them of the choice not to join the union.  Thus, showing the Eureka flag denies people the right not to join the union and breaches the freedom of association provisions of the Workplace Relations Act.  If this logic is taken to its natural conclusion, the ABCC would prohibit any reference to unions at any workplace, on the footing that to be told of the existence of a union implies that you have no choice but to join.  In the anti-union Utopia of the ABCC and its political masters, ‘freedom of association’ means that you are not allowed to know of the existence of the unions, although you are free to associate with them if you find out about them.

Moving away from the ideological stupidity of the ABCC, there is the small matter of free speech which used to be regarded as something we valued in this country.  We can accept as a starting point that the freedom of association provisions of the Workplace Relations Act expressly restrict one aspect of free speech: it is not lawful to say ‘You must join the union’.  But it is a stretch of imagination to say that flying an iconic flag expresses that prohibited idea.

Is it now unlawful in Australia to say things like ‘Unions exist’ or ‘It is good to join a union’?  The ABCC’s recent ruling suggests that we may have reached that position. Basic rights – liberty, free speech, the privilege against self-incrimination, the right to a fair trial – have always been accepted as part of the bedrock of Australian democracy.  It is alarming to see how these values are being eroded, and it is alarming to see the process by which it is being done.  By small degrees our freedoms are being whittled away.

The right to silence is disappearing.  In 2002, ASIO was given power to permit the incommunicado detention of people for up to a week at a time, even though they are not suspected of any wrong-doing: it is enough if they are thought to have information about others who may have been involved in terrorist offences.   The person may be taken into isolated custody, and will not have a free choice of legal help.  They will not be permitted to tell friends or family where they are.  They must answer questions or face 5 years imprisonment.  When released, they are not permitted to tell anyone where they were or what happened to them, on pain of imprisonment.  They can legally ‘disappear’ for a week.

Under provisions introduced in 2005, the Australian Federal Police can obtain a preventative detention order which results in a person being jailed for up to 14 days, without charge or conviction for any offence.  The order is obtained in secret.  The person is not allowed to know the evidence on which the order was obtained.  Similarly, the AFP can obtain a control order against a person, in a secret hearing.  This can involve house arrest for up to 12 months, without access to telephone or the internet.  The subject of the control order has no right to know the evidence which was used against them.

Thus, a person's basic liberties can be grossly interfered with in circumstances where they have no opportunity to know the evidence on which the order was obtained, much less to challenge it.

The Federal Attorney-General has very wide powers to prevent one party in litigation from knowing what evidence the government has used against them; and he has wide powers to prevent a party from calling evidence which is relevant and helpful to that party’s case.

As the case of Dr Mohamed Haneef demonstrated, the AFP can hold a person for questioning for several weeks, even though they did not ask Dr Haneef any questions during the first 11 days of his incarceration.  Now there is a serious proposal that the AFP be given ‘sneak and peek’ warrants.  These are warrants which are executed without the subject knowing that their premises or their computers have been searched.  The main vice of these is that, if the terms of the warrant are exceeded, the subject of the warrant has no redress; they do not even know that they have been raided.  Judicial oversight of the execution of a search warrant is the only possible way of guarding against misuse of the warrant.

History shows that basic liberties are lost not all at once but by small steps.  It is time to take our liberties seriously, before they are taken altogether.

Julian Burnside QC is President of Liberty Victoria