In December 2013, Attorney-General George Brandis formally asked the Australian Law Reform Commission to critically examine Commonwealth laws which “encroach upon traditional rights, freedoms and privileges”. The Commission has recently received public submissions, and is due to provide a final report by the end of the year.
The “Freedoms Inquiry” has thus far received little attention.
So what are these “traditional rights, freedoms and privileges” that Brandis is referring to? The answer – they are what Brandis says they are. The Law Reform Commission was provided a list of such freedoms and asked to consider only these. As the Commission noted in its own Issues Paper, “many social and economic rights are also recognised in international law – for example, the right to work and the right to housing. As important as these right may be, they are not the focus of this Inquiry.”
Brandis’ list includes certain freedoms contained in the UN’s International Covenant on Civil and Political Rights (the “ICCPR”), such as freedom of speech and freedom of religion. Human rights outlined in the International Covenant on Economic, Social and Cultural Rights (the “ICESCR”, to which Australia is also a party) do not feature at all.
Unsurprisingly, Brandis has cherry-picked the rights and freedoms to be investigated. He did not, for example, list the ICCPR right of self-determination, the freedom from discrimination or the rights of minorities. He also didn’t list the ICCPR right to be treated humanely and with dignity in detention, or the rights of non-citizens not to be deported without due process of law. Of course, had these rights been included in the inquiry, genuine human rights issues such as the Coalition’s current asylum seeker policies may have been examined.
Senator Brandis has, however, requested an examination of Commonwealth laws which “reverse or shift the burden of proof”. There are a number of Commonwealth laws which reverse the usual legal test in civil cases in which an applicant is required to prove their case on the balance of probabilities. For example, section 361 of the adverse action provisions in the Fair Work Act 2009 provide that it is to be presumed that a respondent employer took the action in question for the alleged prohibited reason (such an employee being dismissed because they are a union member, pregnant or have a physical or psychological disability) unless the respondent employer proves otherwise. This reverse onus has been a longstanding feature of IR laws.
There are cogent reasons which justify the inclusion of such a reverse onus in IR legislation. It is widely recognised that it is extraordinarily difficult and unfair for an employee to have to prove matters relating to the state of mind of the employer. The employer is best placed to provide their explanation for their motivations in treating an employee in a certain way.
The UK, European Union, Canada and the US have, in varying ways, all adopt a framework that shifts the burden of proof to the respondent employer in such cases. The reverse onus has worked well, and has not operated to provide employees with any unfair advantage in proving their case. Discrimination claims still remain very difficult for employees to prove.
Any moves to change the current adverse action provisions of the Fair Work Act regarding the reverse onus would be completely unnecessary and would significantly increase the difficulty employees face in proving an adverse action claim.
Brandis has also asked the Commission to look at laws which “authorise the commission of a tort”. One such law is found in the limited immunity that applies to employees taking lawful and protected industrial action.
Section 415 of the Fair Work Act provides that no legal action is available against employees who engage in protected industrial action. Action which includes personal injury, wilful or reckless destruction or damage to property, unlawfully taking or using property and defamation are all exceptions to the immunity employees enjoy.
The legislated right of employees to join unions has existed in Australia since 1904. And the statutory immunity for protected industrial action has existed in Australian law since 1993, when the IR system moved from a system of centralised conciliation and arbitration of industrial disputes, to a focus on enterprise level bargaining between unions and single employers.
The limited immunity for industrial action is a necessary and fundamental component of freedom of association and the right to collectively bargain (rights recognised in international human rights law, including the ICCPR, the ICESCR and various ILO conventions all ratified by Australia).
Indeed, the Australian Institute of Employment Rights has argued in its submission to the Freedoms Inquiry that, given the extremely stringent limitations imposed on the taking of protected industrial action, there is a case to loosen the restrictions on employees in order to take industrial action.
Already, employees can only lawfully take industrial action in support of a proposed enterprise agreement, such action can only be taken after the agreement expires, and there are a swag of other provisions which preclude employees taking industrial action in support of certain subject matters. The processes required to approve industrial action through the Fair Work Commission are cumbersome, time consuming and open to pedantic technical arguments by employers who routinely seek to stymy employees’ rights to take protected industrial action.
There exists simply no case to decrease the current immunity available in the Fair Work Act for protected industrial action. No doubt employers will argue for the immunity to be reduced or removed.
The Law Reform Commission will shortly be releasing its Discussion Paper. This should elucidate its agenda for the Freedoms Inquiry including what recommendations may be made about the reverse onus of proof and immunity for industrial action. Unions should watch this space.
Australia has some serious and pressing human rights issues. Our treatment of asylum seekers, growing disparity in income and access to affordable housing to name a few. Unfortunately, the Freedoms Inquiry will not be dealing with any of them.
More information regarding the Law Reform Commission’s Freedoms Inquiry can be found at: www.alrc.gov.au/inquiries/freedoms.