By Keith Ewing, Professor of Public Law, King’s College. London
Imagine a State where the governing party decided to re-write the law to liquidate the main opposition party. Or passed a law to render unlawful the existing structure of the main opposition party. Or changed the law to restrict the right of opponents to campaign against it at election time.
Some at least might be induced to shake their head in disbelief. The less laconic might express outrage that this is not the practise of democratic government, one of the first duties of which is to ensure that political power is not abused. The more thoughtful might even be heard to say that political power should not be used to undermine opposition parties, or distort the rules of electoral fairness.
Welcome to New South Wales, Australia. For all practical purposes the Australian Labour Party has been declared unlawful as originally created. Formed by trade unions to give working people a political voice, the State has now decided that the ALP can no longer exist in its present form, a form that is an untidy mixture of individual and collective membership.
Under the Constitution of the Party, there are two kinds of membership: individual and affiliated. Both individual and collective members pay a membership fee, and both have legal rights and duties that arise from membership. Affiliation is not simply a declaration of support or an oath of fealty. It is a form of membership practised by trade union based labour parties all over the world.
Amendments to the New South Wales Election Act introduced this year will effectively ban affiliated or collective membership. As the Explanatory Notes to the Act make crystal clear, ‘it will be unlawful’ for a trade union ‘to pay annual or other subscriptions to a party for affiliation with the party’. Without the membership fee, affiliation will be a hollow shell.
This attack on the ALP represents a major violation of constitutional principle, as recognised elsewhere in English speaking jurisdictions, where trade union based parties flourish. It is of the essence of the principle of freedom of association that political parties come in all shapes and sizes, and in different organisational forms. Party structure is a matter for citizens, not the State.
If trade unions need to form a political party, why should they be denied the right to do so? If citizens are prepared to engage with political parties through intermediary organisations such as trade unions, why should this not be celebrated and encouraged? And if voters are willing to accept the expanded electoral choice offered by this form of party organisation, why should it be taken away from them?
But it gets worse. If trade unions remain ‘affiliated’ to the party they created but can no longer support financially, they are for all practical purposes neutered electorally. This is because under the extraordinary Election Act 2012, any election expenditure incurred by an affiliated union will count as part of the expenditure of the ALP, which is subject to a legal limit.
‘Affiliated’ unions can thus effectively only spend with the consent of the ALP, in which case their expenditure will count as the expenditure of the Party. By impaling trade unions on the horns of a horrible political dilemma, the Act creates a powerful inducement for unions to cut all organisational links with Labor. Only by cutting these links will trade unions regain electoral freedom, albeit to a limited extent only.
Trade unions are thus cynically being written out of the political script. In my experience, this is without precedent in the democratic world, and wholly unacceptable in a free society.. As a consequence – and perhaps as intended – the governing party is undermining the very democracy that returned it to office, and which it has a duty to protect and nurture.
The aim it seems is to ensure that there will be no repeat of the hugely successful fair work campaign of 2007. Contrast the position with employers. True, big business cannot donate to political parties. But unlike trade unions, every company is free to spend just over $1 milllion each at election time, promoting causes that will be helpful to the Liberal Party.
In 1992 the High Court decided that the ban on political advertising in federal elections introduced by the Keating government was unconstitutional. If it is unconstitutional to ban television advertising, it must surely also be unconstitutional effectively to impose unconscionable demands on trade unions if they wish to use this or any other form of electoral communication.
Update: This link to the Australian Workers Union on the Fair Work Act was sent to PIAU by Barry Camfield.
