15. Abuse Of Rights
from Human Rights In Australia by LJM Cooray (1985)

Introduction
Political Misuse Of Rights
Abuse Of Union Power
Union Attack On Freedom Of Association
Freedom Of Assembly And The Intimidation Of Society
Radical Attitudes To Personal And Political Liberties

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.