June 03, 2019 Issue: June 2019

AUSTRALIA - Another Australian State Protects Freedom of Association in Bill of Rights

By: Paul Harpur, Senior Lecturer, TC Beirne School of Law, University of Queensland

Freedom of association is not just a labor right

The ILO Declaration on Fundamental Principles and Rights at Work provides that, along with three other rights,  the right to freedom of association is a core right fundamental both inside and outside the industrial relations jurisdiction.  Despite the normative shift to regard freedom of association as a core right, Australian States have not always protected this right.  [Though compared to the United States, Australia arguably has a better record on protecting freedom of association and trade unions.] This note reports how the protection of freedom of association as a human right in Australia just became a little bit stronger.

Ideological shift to recognising freedom of association as a human right

Australia is a federation consisting of a Commonwealth federal jurisdiction, six State jurisdictions and 2two mainland territories.

Australia has a long history of protecting and regulating for freedom of association in industrial instruments. Australia federally has anti-discrimination statutes protecting age,disability, race and sex, whereas freedom of association is primarily protected in industrial relations laws.  The most recent industrial relations law to protect freedom of association is the Fair Work Act 2009 (Cth).  The Fair Work Act 2009 (Cth) protects freedom of association and the right to engage in industrial action.  This statute also includes a robust workplace rights regime which merges some human and labor rights. This industrial relations regime extends its operation to protecting activities that are relevant to exercising the right of freedom of association.  While labor rights and human rights are largely protected by their own regimes in Australia, moves in bills of rights is arguably challenging this separation and helping to recognize core labor rights as human rights.

What has happened

Even though the drafters of Australia’s constitution drew inspiration from U.S. constitutional law, Australia has never had a federal bill of rights. The Australian States and territories, however, have been enacting bills of rights, and to date every such statute protects freedom of association as a human right.

The Human Rights Act 2004 (Australian Capital Territory) was the first Australian jurisdiction to adopt a parliamentary bill of rights.  Section 15 protects the right to peaceful assembly and freedom of association. The next Australian jurisdiction to adopt a bill of rights was the State of Victoria.  The Charter of Human Rights and Freedoms Act (Victoria) also protects the right to peaceful assembly and freedom of association in section 16.

On 27 February 2019, the Australian State of Queensland became the third jurisdiction in Australia to have a bill of rights.  The Human Rights Act 2019 (Qld) protects fundamental human rights and builds from international conventions. Importantly, the Human Rights Act 2019 (Qld) follows the trend to protect freedom of association and expressly recognizes in section 22 that every person has the right to freedom of association with others, including the right to form and join trade unions.

The fact that all Australian bills of rights were adopted in the 21st century, and that all protect freedom of association, demonstrate that lawmakers continue to recognize the important role of organized labor.