WHEN the new secretary of the Australian Council of Trade Unions, Sally McManus, defended breaking laws if they were “unfair”, she was shot down by the Turnbull government and the Prime Minister in particular.On face value, having a community leader encouraging others to break the law seems reprehensible.
However, respect for the rule of law is not quite so straightforward.
The thinking of Mr Turnbull, a lawyer himself, is reinforced by the International Bar Association that argues: “The Rule of Law is the foundation of a civilised society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect”.
This provides a pretty strong argument for the government to corner the unions.
After all, the government established the Royal Commission into Trade Union Governance and Corruption specifically to find where the trade unions have been operating outside of the law and in a manner that undermined their membership.
It was a thinly veiled attack on the trade union movement with the clear purpose of undermining their power and support for the Labor Party.
When McManus was roundly attacked by the Prime Minister, he revelled in telling Parliament that “she has said you only have to obey the rule of law if you like it. That is the law for unions. Imagine where we would be if that was the law for everyone. People would only pay tax if they liked it; they would only obey the speed limit if they liked”.
If only the rule of law was as black and white as the Prime Minister and the International Bar Association would have us believe.
It seems McManus had in mind unfair laws that penalise those who are most vulnerable. She was supported by the ACTU President Ged Kearney who pointed out how restrictive right-to-strike laws were recently flouted by lowly paid childcare workers to emphasise the nature of their pay claim. There are many, much better examples of bad laws that have been and, with the wisdom of hindsight, should have been defied.
On May 1, 1997, Tasmania became the final Australian jurisdiction to repeal its anti-homosexuality laws, passing the Tasmanian Legislative Council by one vote. Throughout Australia such laws had been defied by many loving couples as antiquated, inappropriate and unfair. International jurist and then High Court judge Michael Kirby revealed in his autobiography that he was one of the people who, for love, contravened this law.
Former Greens Senator Bob Brown not only flouted the same law but has argued recently of the importance of resisting other unfair and inappropriate laws. In his environmental campaign to prevent the destruction by damming of the Franklin River, he and about another 1500 people were arrested and 500 of them jailed.
Writing in the “Saturday Paper”, Brown says: “Implying that civil disobedience against bad laws has no place at all takes our country closer to autocracy than most citizens want to go… making a stand against what a citizen perceives as a bad law is an equal prerogative across the spectrum of a democratic society”.
Peaceful, non-violent and deliberate civil disobedience has an important part to play in advanced democracies.
This is how Mahatma Gandhi challenged the unfair power of the British and Nelson Mandela challenged the dominant power of the apartheid regime in South Africa.
The rule of law does play a key role in a civilised society. However, citizens not only have a right but also a responsibility to challenge laws that are unjust or unfair. As Brown points out such defiance of unfair laws “has a history of curbing the power of the powerful”.