MUA---Here to Stay ...Today!

Keeping Things Peaceful or Keeping the Peace: Police at the Pickets

Stuart Wood

Introduction

It has been argued ... that the police do not have adequate numbers to control the picketers ... Thus, it is said, it is a reasonable exercise of their discretionary judgment to make no attempt to break the picket line to allow access by vehicles and pedestrians. This is a truly frightening proposition, particularly coming from senior officers of police and a senior law officer of the Crown. It implies that the State lacks sufficient resources to enforce the law. It implies that force or the threat of force can supplant the rule of law. It tends to endorse the law of the jungle. It leads to anarchy. It is plainly unacceptable.(1)

These conclusions were not made in relation to the Melbourne waterfront dispute. They were made by Justice Wright of the Supreme Court of Tasmania in his findings in the 1992 APPM dispute.(2) However, almost 6 years later the 'truly frightening proposition' referred to by Justice Wright remains a serious danger. This danger was relived in the dispute between Patrick the Australian Stevedore (Patrick) and the Maritime Union of Australia (MUA) in early 1998. The Victoria Police made the same mistakes as the Tasmania Police. This paper identifies some of the mistakes made by the Victoria Police in response to the violence, intimidation, blockades and thuggery that occurred on the Melbourne waterfront during the Melbourne docks dispute, and proposes strategies to address these mistakes and/or to avoid them occurring in the future.

The Melbourne docks dispute highlighted a number of important legal issues. Unfortunately, there is inadequate space to discuss most of these issues. Accordingly, this paper focuses on (I believe) the most important issue raised by the Melbourne waterfront dispute: the failure of the law enforcement bodies to efficiently and effectively carry out their obligation to keep the peace and to prosecute those who disrupt it. This issue is vital to our society because the violence and disruption caused by the Melbourne docks dispute will be re-enacted in the future if the police do not correct the errors they made during this dispute.

The failure of the law enforcement bodies to respond adequately to the industrial action on the waterfront occurred on two levels:

(a) Mistake One: Failure to enforce the law at the site

Firstly, the Victoria Police failed to control the violence and respond to the threats to kill; to clear the trespassers from the docks and to clear the blockades to enable trains and trucks to get into and out of Patrick's site. It will be argued that these failures were caused by two factors:

  • the lack of police resources to respond quickly to breaches of the law; and
  • the lack of understanding of the law amongst police officers.
  • (b) Mistake Two: Failure to bring charges

    Secondly, the Department of Public Prosecutions and the Victoria Police, the bodies responsible for the prosecution of criminal offences, failed to bring any charges or (so far as I am aware) to investigate the crimes which allegedly occurred during the Melbourne docks dispute. This is despite Justice Beach's finding on 20 April 1998, that:

    On 23 February last, I granted an interlocutory injunction against the MUA and certain of its officers at the instance of two other companies in the Patrick Group. At that time I described the damage that was being inflicted on those plaintiffs by members of the MUA as alarming. That has proved to be no overstatement or exaggeration of the situation. The material presently before the court demonstrates that many of the persons who have been picketing East Swanson Dock and Webb Dock, and who are presently doing so, have been guilty of serious criminal behaviour.(3) [emphasis added]

    On 28 April 1998, the Victorian Supreme Court of Appeal approved Justice Beach's finding. The Court of Appeal noted that:

    [t]he learned Judge in his reasons described the situation as alarming and said that the material before the Court demonstrated that many of the persons picketing East Swanson Dock and Webb Dock had been guilty of serious criminal behaviour. His Honour's statement was wholly justified.(4) [emphasis added]

    However, there has been no sign of an investigation by the Victoria Police, the local CIB or the Water Police into the matters referred to by Mr Justice Beach since the industrial action at the Melbourne docks ceased. These matters have not been referred to the DPP. There have been no committal proceedings. And there have certainly been no convictions. This is an extraordinary state of affairs, particularly when one recalls the extensive media coverage the dispute received along with these explicit observations of senior members of the judiciary. What greater incentive does the Victoria Police need to act? And what about the victims of the 'serious criminal behaviour'? After having to protect themselves with little or no support from the Police, are these victims also expected to pursue prosecution themselves?

    The solution to this second mistake, the failure of the police to prosecute is straightforward: investigate, prosecute and let the jury decide the guilt of those prosecuted. However, the first mistake, the failure of the Victoria Police during April and May 1998 to keep the waterfront open, cannot be remedied. The Police failed to control the violence. They failed to evict the trespassers. They failed to enforce the right of any person (and his or her guests or clients) in our society to freely enter and exit his or her property without harassment, intimidation and violence. One can't go back in time: this first mistake has been made. The Victoria Police capitulated to the mob. This fact cannot be avoided. Further, these mistakes will be repeated unless action is taken to explain to the Victoria Police their mistakes and to thereby change the Victoria Police's understanding of their role. But education may not be enough. The Victoria Police may also require additional personnel and equipment: to better enable the Police to quickly and efficiently enforce the rule of law during future industrial disputes. Unless the police change their approach, the rule of law will degenerate into mob rule. The Victoria Police must learn the lesson of the Melbourne docks dispute.

    It is not possible to deal with all the errors the police made during the Melbourne docks dispute because of space constraints. I will concentrate on the police's conduct during the following key periods:

  • the first few hours during which the blockade assembled;(5)
  • the first few attempts to cross the blockade by trucks;(6)
  • the first couple of attempts to cross the blockade by train.(7)
  • It will be demonstrated that the enforcement of the law during large-scale, industrial disputes requires police action: judicial action alone, no matter how swift, is not enough.

    In order to appreciate the nature of the mistakes made by the Victoria Police, it is necessary to:

  • understand the geography and role of East Swanson and Webb Docks within the Port of Melbourne (Appendix 1---Map);(8)
  • have a general understanding of the legal proceedings;(9)
  • have a general understanding of the basic legal principles applicable to industrial disputes;(10)
  • appreciate the violent nature of the dispute;(11) and
  • understand the limited power of the courts to control large scale industrial disputes.(12)
  •  

    East Swanson Dock During April and May 1998

    There are a number of docks within the Port of Melbourne. Patrick has two main docks: Webb Dock and East Swanson Dock. East Swanson Dock is principally a container facility, while Webb Dock primarily deals with other types of cargo. In terms of cargo volume, East Swanson Dock is about ten times the size of Webb Dock. East Swanson Dock is one part of Swanson Dock and West Swanson Dock is the other. P&O Ports Limited operates West Swanson Dock. By container volume, Swanson Dock is the largest dock in Australia. If the bush is Australia's trading heart: then Swanson Dock is the main aorta. East Swanson Dock is normally open 360 days per year. However, during March and April 1998 it was blockaded for over 30 days straight.

    This analysis focuses on the industrial action which occurred at East Swanson Dock during March and April 1998. It will not address the following periods of industrial action:

  • the 25 day strike at Webb Dock during January and February 1998;(13)
  • the two 48 hour wildcat strikes at East Swanson Dock during February,(14) or
  • the strikes at the other Patrick's ports around Australia, that were designed to put Patrick out of business.(15)
  • It is assumed that the experience at the Melbourne dock's blockade was similar to that at other Patrick's ports. For example, the memorable image of the New South Wales policeman playing cricket with picketers, instead of enforcing the law, captured failings in the New South Wales Police's conduct which also existed in the Victoria Police's handling of the dispute.

     

    The Legal Proceedings

    The Melbourne docks dispute led to the commencement of a number of legal actions. However, there were essentially two streams of litigation: the first was commenced by Patrick in the Supreme Court of Victoria and the second by the MUA in the Federal Court of Australia. This paper does not review the Federal Court proceedings.(16) For current purposes, the Federal Court proceedings are only relevant as evidence of the union 'having it both ways': using the law to obtain jobs for their members, while simultaneously being in contempt of the law by blockading East Swanson Dock.

    The month long blockade of East Swanson Dock lead to a number of actions being taken by the Melbourne Port Corporation (MPC). It also gave rise to three main Supreme Court actions taken by Patrick:

  • the first led to an injunction being granted by Justice Beach on Monday 20 April 1998;(17)
  • the second, led to an amendment to that injunction by the Court of Appeal on Tuesday 28 April 1998;(18) and
  • the third was a contempt proceeding against MUA on Friday, 8 April 1998.(19)
  • Each of these proceedings raises interesting issues, but time does not permit a detailed discussion of them. The important point to learn from these proceedings is that police action can and should be quick and immediately effective, whereas court action is slow and effective only when enforced by the police. Therefore, involving the court only stalls the resolution of industrial disputes: the police will almost inevitably be required to enforce the law at some point. However, to fully appreciate the critical role of the police in this process, it is necessary to understand the basic legal principles that govern industrial disputes.

     

    Industrial Disputes: Some Basic Legal Principles

    In our society, one is not entitled to blockade another person's house or business. A group of blockaders will almost certainly commit the tort of interference with contractual relations or trade. One is not allowed in our society even to interfere with people or goods or services entering or leaving a person's house or business. Blockaders are certainly not allowed to prevent such activities. People have the right in our society to carry on their business unmolested. It does not matter whether the blockade involves "passive" obstruction or "active" (i.e. violent) obstruction. In either case the blockade will be unlawful. Thus, blockading (even passive blockading) is a "breach of the peace" or is likely to give rise to a "breach of the peace", and thus make the blockader liable to arrest. An order from the court declaring the blockade to be unlawful is not required before the police can, and indeed must, act to clear a blockade.

    The concept that a passive blockade is a "breach of the peace" or is likely to give rise to a "breach of the peace" is confusing. A historical excursus describing how the "King's peace" was a fiction developed by English monarchs during the early middle ages primarily to standardise the law and impose central authority upon villages throughout the land, is required to explain to an ordinary citizen why an apparently "peaceful" protest amounts to a "breach of the peace".(20) It also requires an explanation as to how the oath taken by the Victoria Police imposing an obligation to "keep the peace",(21) effectively imposes an obligation to enforce the law; even if the enforcement of the law requires force and even if the force breaks what is an apparently peaceful scene. In short: keeping the peace does not mean keeping things peaceful, it means enforcing the law.

    The Victoria Police in the Melbourne waterfront dispute evidently thought keeping the peace meant keeping things peaceful.(22) It is sometimes argued that a group of picketers has not attempted to prevent a person from entering or exiting his or her property and/or has not attempted to harass, intimidate, threaten or assault a person whilst entering or exiting his or her property. Rather the group has merely distributed and received information as part of a 'peaceful picket'. Accordingly, in order to create the appearance of a peaceful picket, blockaders will masquerade as 'peaceful picketers' insisting that they are simply picketing to communicate information to persons who pass by. Their purpose (it is said) is not to prevent or even interfere with entry and exit, but merely to give and receive information. It is therefore argued that if a truck driver decides not to pass through a picket after receiving information from picketers, even if this occurs in the presence of a hundred shouting men and after noticing one taking photos and another recording the truck's registration number, that the truck driver has departed voluntarily. This argument has been recognised as nonsense by many people. The best answer to it is still F.E. Smith's speech to the House of Commons almost a century ago:

    We are asked to permit a hundred men to go round to the house of a man who wishes to exercise the common law right in this country to sell his labour where and when he chooses, and to 'advise' him or 'peacefully persuade' him not to work. If peaceful persuasion is the real object, why are a hundred men required to do it? If I were a man who was wishful to disposes of my labour as I chose, although the member for Merthyr (Keir Hardie) might not persuade me to break a contract, still, if the honourable member came with fifty other peaceful persuaders to the house where I and my wife live, I fear I should be much more likely to yield to persuasion than if the honourable gentleman came by himself. We are told that another object of these well attended deputations is that information may be given. Is it more convenient that information should be given by fifty men, than by one man? Even in this House it is recognised that, as a general principle, it is more convenient that one member should address the House at one time. Every honest man knows why trade unions insist on the right to a strong numerical picket. It is because they rely for their objects neither on peacefulness nor persuasion. Those whom they picket cannot be peacefully persuaded. They understand with great precision their own objects and their own interests, and they are not in the least likely to be persuaded by the representatives of trade unions, with different objects and different interests. But, though arguments may never persuade them, numbers may easily intimidate them. And it is just because argument has failed, and intimidation has succeeded, that the Labour Party insists upon its right to a picket unlimited in respect of numbers.(23)

    Thus, governments in the UK and some courts in the US have limited the numbers on a picket line to 6 (sometimes as few as 2) in an attempt to ensure that only communication of information and not intimidation occurs. There is no impediment to Australia adopting a similar response to blockading. The Australian courts undoubtedly have the power to limit pickets in this manner but this type of order would require police enforcement. Of course, as has been discussed above, the police already have this power, indeed they have a duty to break up blockades with or without a court order.

    The discussion above is predicated on the assumption that a 'peaceful picket' will actually be peaceful. However, experience indicates that pickets in industrial disputes are almost never peaceful. Blockaders usually commit a number of crimes such as assault, threats to assault, threats to kill and sometimes murder or manslaughter. Picketers frequently stalk persons who have attempted to cross a picket, or try to have them sacked or black-banned. By participating in these and other activities, blockaders frequently commit a number of torts such as intimidation, nuisance and watching or besetting. Further, the 'pack mentality' often impels picketers to threaten that they will assault or kill, or make less violent but equally effective threats against the family of the victim. All of these tactics were employed during the Melbourne docks dispute. It should come as no surprise when it happens again. However, the interesting thing about the Melbourne docks dispute in this regard, is that the level of violence was extraordinarily well described. Indeed, it was so well described that on two occasions the Supreme Court of Victoria has commented upon the fact that "many of the persons picketing East Swanson Dock and Webb Dock had been guilty of serious criminal behaviour".(24)

     

    Level of Violence on the Melbourne Docks

    The learned judge in his reasons described the situation as alarming and said that the material before the Court demonstrated that many of the persons picketing East Swanson Dock and Webb Dock had been guilty of serious criminal behaviour. His Honour's statement was wholly justified.(25)

    People familiar with industrial disputation are aware of the level of violence associated with workplace disputes. Recent cases have provided notorious examples. A truck driver was the victim of an ugly mob mentality in Dollar Sweets v Federated Confectioners Assoc.(26) Confronted by a picket line when trying to deliver goods, he was partly blinded after being surrounded by men and women and struck from behind. Another incident during an English coal strike last decade was more tragic. Striking coalminers standing on a bridge hurled a concrete block onto a taxi delivering a miner to work, killing the driver.(27) Even people associated with the legal process are not immune from these attacks. For example, a process server had his leg broken whilst serving papers on a member of the old BLF.

    However, the unions and unionists achieved new heights of violence during the dispute on the Melbourne docks. The Court of Appeal in Victoria went to great lengths to set out the evidence about the violence. There was so much evidence that the Supreme Court's summary runs for about 5 pages. The first paragraph is set out below:

    The affidavit material before the court asserts that numerous acts of violence and intimidation have occurred on and around the picket line in the course of the picket, beginning on 7 April 1998, and which are still continuing. The conduct of the picketers is said to have been characterised by the following. Projectiles have been thrown into the East Swanson Dock premises from outside the fence which borders those premises on a regular basis. Security personnel and employees of Patricks in the premises within throwing distance of the fence have been subjected to bombardment by projectiles thrown and catapulted from outside the fence by picketers. The projectiles include ballbearings, steel nuts and rocks and include heavy bolts, medium bolts, numerous golf balls, planks of wood, half bricks and stones. The affidavits assert that other dangerous objects, some of which are explosive in nature, and a caltrop, i.e. an implement with spikes used to puncture tyres of vehicles, have been thrown in by picketers. Security personnel and management employees have been repeatedly subjected to serious abuse, threats of physical violence and repeated threats that they will be killed. On 11 April flares were fired at the railway gate from outside the fence and shortly afterwards a lit projectile was thrown over the gate. A rock thrown from outside the fence on 11 April smashed a window in a forklift. The perimeter fence and gates have been subjected to ramming and general assault. For example, on 12 April a vehicle driven by a picketer rammed into the P & 0 gate at the premises in an apparent attempt to destroy the gate. Firearms have been pointed at security personnel and on 12 April 1998 a ship bearing the name "Jang Jinghe" was spotted by security personnel with a person on board brandishing a shotgun and pointing it at security personnel.(28)

    After setting out the remainder of the evidence,(29) the Court of Appeal then concluded:

    The material before his Honour and this Court, which is virtually undenied, demonstrates that the conclusions reached by his Honour as to the behaviour of the picketers, and in particular the MUA members at the picket, have been stated very moderately indeed. Insofar as the picket can now be called a peaceful one, that is simply because Patricks is no longer attempting to bring containers or other material through the picket and into Patricks' premises, nor is it seeking egress from those premises for any containers for delivery elsewhere. The evidence before the Court establishes amply enough for interlocutory purposes that any attempt to take either course would lead to the most violent of demonstrations and put at serious risk those attempting such a course. Furthermore, it is clear that the picket remains peaceful and quiet in part because no employee of Patrick, and no security personnel, presently dares approach within the range of the projectiles which were as late as last Wednesday on the available evidence still being thrown at persons attempting to ferry employees into Patricks' premises across the Yarra River. The learned judge in his reasons described the situation as alarming and said that the material before the Court demonstrated that many of the persons picketing East Swanson Dock and Webb Dock had been guilty of serious criminal behaviour. His Honour's statement was wholly justified.

    Trial judges who are confronted with applications for urgent injunctions must have the necessary freedom to make the orders which they consider are required by the circumstances of the particular case. The behaviour of many of the MUA members and picketers was extremely violent and dangerous and we think fully justified the terms of his Honour's order, which, as now amended, will remain in effect against the MUA and the other defendants, the appeal of the MUA appellants having been discontinued.(30) [emphasis added].

    There are three things about the Supreme Court's findings that should be noted. Firstly, the description of the violence is only a summary and there is much left out. One must examine each individual aspect of the violence to fully appreciate its severity. Secondly, the Supreme Court's findings have not been contested. Thirdly, the broad phrasing such as "assault" and "serious criminal behaviour" employed by the Supreme Court, does not effectively describe the intimidation, terror and fear inflicted by the picketers' brutality. Accordingly, it is necessary to examine some examples of the picketers' conduct highlighted in the Supreme Court decision and to describe these examples in greater detail in order to fully understand the violence that occurred during the Melbourne docks dispute.

    (a) Some Individual Aspects of the Violence

    (i) Driving the Straddle Carriers

    Just as a box is used to pack things when moving house, a container is used to transport goods carried by sea. Containers are as big as trucks and a crane is required to load them on to ships. A straddle carrier is used to move containers around a dock. A straddle carrier is worth over a million dollars. It has long been thought that the right-hand drive straddle carriers may be inferior to the left-hand drive ones, like the ones used in the Port of Rotterdam, but an incident that occurred on the first night of the Melbourne docks dispute may have put this theory to rest. The drivers of the straddle carriers (whoever they might have been) showed a level of efficiency and ingenuity of which a Dutch stevedore would be proud. The Court of Appeal's summarised the incident as follows:

    On 7 April 1998, some 57 security personnel arrived at East Swanson Dock, 30 by boat and the remainder by bus. When the security guards entered the premises the employees present on the site immediately began shouting and yelling abuse. Some of these employees (nearly all of whom, for reasons we have already stated, would have been members of the MUA) climbed into straddle carriers. These are large 69 ton (31) steel vehicles which lift, carry and stack containers within the terminals. Despite their massive size they are highly manoeuvrable. Some of the employees climbed into these straddle carriers and drove them at speed directly towards the security guards. A number of security guards were chased by the straddle carriers around the dock. One security guard narrowly averted being crushed to death against a metal container by a straddle carrier only by leaping out of its path at the last minute and sustaining minor injuries. Another security guard was clipped by a straddle carrier, and his radio was knocked from his hand and crushed by the carrier. Another security guard who was chased by a straddle carrier fled behind an 11,000 volt electric transformer unit. The person driving the straddle carrier rammed the transformer in an apparent attempt to make contact with the security guard. Another straddle carrier repeatedly drove back and forth over a large pile of personal possessions belonging to the security guards.(32)

    The carriers were found around the premises the next morning: including one next to the fence line which could not be retrieved without police protection and was vandalised by the picketers over the next couple of days. As the Court of Appeal stated:

    One straddle carrier was left against the rail gate in a position adjacent to the picketers with only the cyclone fence between it and them. Representatives of the Patrick companies attempted to move it on two occasions, on 10 and 11 April, but persons who approached the straddle carrier had objects thrown at them by picketers outside the fence. The straddle carrier thus remained against the fence until a recovery operation was finally successful on 18 April.(33)

    (ii) The Cars

    On 7 April 1998 (the first night), whilst the straddle carriers were being driven with Dutch ingenuity, Patrick's motor cars were being driven with a German enthusiasm for victory. The Court of Appeal described their antics as follows:

    That evening three motor cars driven by employees of Patrick 1 or Patrick 2 chased security guards around the compound for a number of minutes. Those who were chased by the straddle carriers and these three cars believed their lives to have been in grave danger.(34)

    This behaviour continued later in that night:

    Early on the morning of 8 April two employees of Patrick 1 or Patrick 2 who had remained inside the premises, climbed into a red Patricks' vehicle and drove it at speed towards a number of security guards who narrowly avoided injury by jumping out of the way of the speeding vehicle(35)

    (iii) On the picket line: security guards retreat

    Just before midnight on 7 April 1998, it is alleged that the first picketers arrived at East Swanson Dock. The Court of Appeal explains:

    Late on 7 April three buses arrived outside the main gate of East Swanson Dock bringing approximately 100 persons. One Patrick vehicle, a utility, situated close to the gate to the East Swanson Dock premises was hit by numerous projectiles and sustained significant panel damage and windscreen damage. Furthermore, some of the picketers cut holes in the cyclone perimeter fence of the premises and entered at various times during the night. The security personnel guarding Patricks' premises on the night of 7 April claim that they were subjected to many threats of physical violence and abuse from outside the fence and picketers made comments to security guards to the effect "We know where you live. We're going to get you tonight" and "You're dead". Many of the people outside the gate were throwing empty stubbie bottles, half bricks, golf balls, one inch nuts, container handles and rocks over the fence at the security guards. It was necessary for the security personnel to move away from the fence and stand beyond throwing distance from the fence for their own personal safety.(36) [emphasis added]

    These were not isolated incidents, unique to the first night of the picket. For example, ten days into the dispute the following incident is alleged to have occurred:

    While Mr Steel was present at the rail gate area on 18 April he was spat upon by picketers, and coffee was thrown over him and at one stage a yellow liquid which he believed to be urine was thrown over him by a person or persons on the picket. Picketers constantly called out his name and he heard a number of comments to the effect of "We're going to get you" and "We know where you live".(37)

    (iv) The Train Violence

    There were two attempts to get a train through the picket and into East Swanson Dock. The first attempt took place on 10 April and the second on 18 April 1998. By this stage the picketers had placed concrete blocks across the railway tracks and a forklift was required to move them. The Court of Appeal describes what happened to the forklift when it attempted to move the obstruction:

    On 18 April, with the assistance of police, a maintenance crew commenced recovery operation of the straddle carrier, forklift and prime mover placed near the rail gate, during which 20 to 30 picketers congregated behind the police lines on Appleton Dock and shouted abuse at Patrick personnel. That morning a train arrived carrying shipping containers for Patricks but there were numerous objects such as concrete blocks across the track about 200 metres up the track from Patricks' premises. Mr Steel sent a forklift outside the rail gate to remove these obstacles. The forklift was driven by Patricks' National Technical Services Manager together with a tradesman. When the forklift was driven towards the obstructions outside the gate, picketers attempted to force their way into the forklift cabin and a side window on the forklift was broken by what appeared to be a large piece of wood. The police were unable to control the picketers' assault on the forklift and the officer and his driver believed they were in grave danger and accordingly withdrew inside the rail gate. The train was unable to gain access to the premises.(38) [emphasis added]

    (v) The Truck Violence

    At least three concerted attempts were made to bring trucks into the premises. These occurred on 11 April, 13 April and 18 April 1998. All three attempts involved violence or the threat of violence. The Court of Appeal describes the second of these attempts as follows:

    On 13 April two trucks operated by KSK Contractors carrying containers of fruit attempted to enter East Swanson Dock. They were unable to pass through the picket at the Anderson Road gate. Those on board the trucks were abused by the picketers and their lives threatened. Metal spikes were found in one of the left-hand trailer tyres and the prime mover was damaged. A report by a passenger in one of the trucks contains the following statement:

    We turned right into Coode Road when the crowd rushed at the trucks. Objects were thrown at us, one breaking the left-hand side front screen in front of me. People tried boarding the vehicle, banging on doors, windows and mudguards. People tried to jump on other parts of the TAC vehicle. They tore off all the front indicators as well as damaging the front guards. I also saw objects being thrown into the wheels. Both trucks vacated the area. We then returned to QCM container yard and unloaded the trucks. We were followed all the way by two vehicles (a green Holden station wagon and a red Mazda RX7), both of which stopped outside QCM yard. The trucks were then unloaded and both proceeded back to Webb Dock where at the entrance we were abused by a much smaller crowd of people, one of whom spiked the left-hand rear tyre on the trailer.(39)

    The Court of Appeal described the 18 April 1998 incident as follows:

    On 18 April Victoria Police, who had been present in varying numbers at the respective dock sites since 7 April, and whose presence had been necessary on a number of occasions to control the picketers. attempted to clear access to East Swanson Dock. Attempts were made to clear a path to enable 30 trucks carrying containers to proceed through the Coode Road gate onto Patricks' premises but the carriers refused to go ahead with this transport being fearful of intimidation from the picketers. One contractor driving a truck who had driven his truck to a position about 200 metres from the gate was told by the police that it would be too dangerous for him to go between the picketers and that he would not be allowed to go any further. As a consequence the truck was not able to enter Patricks' premises. Mr Steel swore that it remained extremely dangerous for anyone wishing to deliver cargo to or take cargo from Patricks' premises through the Coode Road gate, because there were insufficient police present to restrain picketers present at that gate and those who might move there. On the advice of Victoria Police, attempts to move cargo through the Coode Road gate ceased and have not recommenced since 18 April.(40) [emphasis added]

    (b) Much left out

    The discussion above is based upon discrete events relating to the alleged violence of the employees and the picketers on the first night and the violence associated with attempting to bring the trucks and trains through. However, the discussion of the violence is very limited. There is no real discussion of the events that took place on the picket after the first night, and yet the violence is alleged to have continued for a full month. The discussion above leaves out events such as the following described by the Court of Appeal:

    picketers on 20 April 1998 propelled golf balls into Patrick's premises ... on 22 April persons stationed at the Melbourne side of the West Gate Bridge threw rocks at a ferry boat being used to transfer employees ... On the evening of 22 April a security guard received a death threat from a male caller.(41)

    Even within the time-frame above the discussion is very limited. For example, simply by quoting the Court of Appeal's summary of the allegations of (say) the violence on the picket on the first few days does not do justice to the violence actually alleged. For example, the Court of Appeal commented that "Firearms have been pointed at security personnel". However, this one sentence summary leaves out the allegation that shots were fired. It is based upon a report as follows:

    At the above time [16:12, 12 April 1998] and location [P & 0 Gate] security staff reported they are viewing a male on a boat "Jangjianghe" was pointing a fire arm [sic] (Discription [sic] Rifle or Shotgun) ... at them and at another boat. Gun shots were heard from both P & 0 Gate and Crane Gate. Discription [sic] of male (Redish Hair, Black Top & Fluro Pants). Police were informed immediatly [sic] after call came through......... spoke to....... at Chubb Webb #5. Their boat "Scud" saw a male on the deck of "Jang Jianghe" pointing a fire arm straight at them. This phone call took place at 16:25. At 16:39 police vehicle arrives on site at control tower [sic]. Police offsite at 17:00.(42)

    Similarly, the Court of Appeal's summary that "[p]rojectiles have been thrown into the East Swanson Dock premises from outside the fence which borders those premises on a regular basis" is just a summary. By necessity it simply summaries allegations such as:(43)

    At approximately 13:25 hrs one male approximately 20's wearing a light grey shirt and blue denim jeans with shoulder length blonde hair was in a group of protesters [sic]. This male was holding a sling shot and collecting objects off the ground. He then proceeded to shoot projectiles at myself and the security guards. As we tried to take cover from these projectiles to the best we could I was hit in the right knee by a steel nut which had ricocheted off the ground. It caused me extreme pain and swelling to the knee area. I was afraid to go back to the same position because I did not feel safe.

    Or to take another example:

    At approx 23:15 an object was hurled from Appleton Dock (a glass bottle) and struck female S.O. in the back whilst standing on duty(44)

    However, to focus on the brave man throwing a bottle at a woman from behind, ignores more premeditated assaults. It ignores the sling shot and the golf balls. What possible reason could picketers at the docks have for carrying a slingshot or golf balls? What is going on in the minds of a picketer or picketers who prepare for picketing by packing a slingshot and a set of golf balls? This behaviour is not isolated. In other major industrial disputes in Victoria, allegations of golf balls being thrown and hit by picketers have been made. But to focus on the courageous picketers throwing bottles at a woman's back, or chucking golf balls indiscriminately or even making as to shoot a security guard is to focus on just 3 incidents and to ignore the thousands of others of significance.

    Furthermore the Court of Appeal's summary is based upon affidavits that only capture a fraction of what occurred. For example, it is alleged that threats were made to employees at home. This is probably to be expected. There were comments reportedly made at the picket line to security guards and managers, that the picketers "knew where they lived" and "would get them". Intimidation by threatening employees over the home phone is common in industrial disputes. So it is not surprising that it is alleged that the home telephone was used as a means of threatening to kill employees and their families. As a participant said at the time:

    The ones that lurk around, throw rocks and make phone calls---they're dogs. They're the scum of the earth and I don't think anyone's got time for scum like that, be it the union or anyone else.(45)

    And it is alleged that the threats made by the "scum" were made indiscriminately to whomever answered the phone: the employee, his wife, even his kids. It is alleged that even 5 year old girls were greeted, upon answering, with comments such as "Your daddy won't be coming home tonight---he's dead". It takes some ingenuity to intimidate little girls: the same type of ingenuity it takes to drive straddle carriers the size of small buildings at security guards, attack people with sling shots and throw bottles at a woman's back. The media was right: the docks were full of goons during the Melbourne waterfront dispute.

    (c) Uncontested Evidence

    Moreover, the above allegations are based upon evidence given to the Supreme Court. This evidence was uncontested. A summons was served on the MUA and four of its officials in Sydney and Melbourne on Thursday 16 April 1998 together with a detailed 53 page affidavit from the Manager of the East Swanson Dock and 432 pages of exhibits: in other words a large folder of evidence.

    As is discussed below, the summons was only necessary because the police would not act. The MUA had all Friday, all Saturday and all Sunday to prepare material in response. This is an eternity in any proceeding for an injunction, and particularly so given the mayhem on the docks. But the MUA did not produce any affidavit material in reply except, I think, a 1 page affidavit with no exhibits, from a solicitor from the MUA. It said something along the line, as best I can recall, "I have spoken to someone who has been at the docks over the weekend and she tells me that the protest is peaceful, with families and others in attendance".

    This, to my mind, was the most extraordinary aspect of the whole dispute. Here were detailed allegations involving threats to kill, threats to injure, actual assaults, destruction of property and other violence on a massive scale. And there was no response. As Justice Beach said on Monday 20 April 1998, when he handed down his decision:

    The material in support of the application is voluminous ... The material presently before the Court demonstrates that many of the persons who have been picketing East Swanson Dock and Webb Dock, and who are presently doing so, have been guilty of serious criminal behaviour. There has been no denial of their behaviour in that regard by the MUA or the other named defendants to the proceeding, although they have, in my opinion, had sufficient time to do so had they been so minded.(46)

    Not only did the MUA make no attempt to produce evidence of their own, they did not try to test any of the 53 pages of evidence of the Manager of the East Swanson Dock by cross-examining him. Nor did they call for him to produce any of the material referred to in his affidavit. For example paragraph 73(b) of the Manager of East Swanson Dock's affidavit read as follows:

    The projectiles which have been fired into the East Swanson dock have included ball-bearings, steel nuts and rocks. In particular, I instructed security guards to retrieve objects thrown and catapulted over the fence for evidentiary purposes. Security personnel to date have retrieved some 12 heavy bolts, 40 medium bolts, numerous golf balls, planks of wood, half bricks and stones. These objects have been shown to me by the security personnel. Security personnel have also retrieved other dangerous objects, which they have described to me as explosives and a caltrop (which is an implement with spikes and is used to, amongst other things, puncture tyres of vehicles), from the site. These items will be made available for the Honourable Court's inspection at the hearing of this matter.(47)

    Needless to say, the MUA did not call for this material to be produced. One cannot criticise the lawyers for the MUA. As a general principle, when one has a bad case, it only makes it worse, to allow the witnesses to repeat their story or allowing them to bring the physical evidence to court to support their evidence. It is better to say nothing, avoid the merits and rely upon technical legal points. And of course, this is exactly what the MUA did on Monday 20 April 1998, asking, in effect for the Supreme Court to transfer the claim to the Federal Court or at least for the Supreme Court to do nothing until the Justice North's decision in the Federal Court was handed down!

    However, failing to contest a factual point allows a court to draw an inference that the uncontested fact is true. Thus, the Court of Appeal stated, "The learned judge in his reasons described the situation as alarming and said that the material before the Court demonstrated that many of the persons picketing East Swanson Dock and Webb Dock had been guilty of serious criminal behaviour. His Honour's statement was wholly justified."

     

    Difficulty of Legal Response

    A defendant must be identified and served with legal proceedings and evidence must be established that the defendant interfered or threatens to interfere with the rights of the board. In the same way as any obstructor removed bodily from the site will be replaced by another, so every obstructor restrained by an injunction will be replaced by another obstructor against whom proceedings have still to be launched. The organisation of a state of affairs under which every obstructor who is removed or restrained is replaced by another obstructor constitutes a conspiracy to prevent the board from exercising their statutory rights. But such a conspiracy only gives further grounds for the grant of an injunction against an identified conspirator.(48)

    Faced with violence of this nature and an intention to break the law, the law does provide a remedy in the form of an injunction against the blockaders. However the law operates slowly and is a largely ineffective remedy. It gives the wrongdoer every chance to deny his wrong-doing. The law requires that:

  • the blockader must be identified;
  • the blockader must be personally served and thereby given notice of the orders sought and the affidavit material relied upon;
  • the blockader must be given time to respond;
  • an order must be made against the blockader;
  • the order must be personally served on the blockader;
  • the blockader must be personally served with precise allegations alleging a contempt of the order;
  • the blockader must be given much time to respond to the allegations alleging a contempt;
  • the contempt must be proved beyond reasonable doubt; and
  • an appropriate punishment (jail or fine) must be imposed.
  • In a large scale industrial dispute, it is almost impossible to even achieve the first step. How does one identify a wrongdoer in a crowd that is constantly changing and thereby is given the anonymity of the crowd? Without video cameras it is almost impossible to identify anyone actually committing a wrong. Even with video cameras, at a large site, it is almost impossible to isolate the wrong-doer. The attacks occur away from prying TV cameras, away from security patrols and away from the police. It is not just lack of courage that prompts picketers to throw at the back it is because they can't be identified. How is one to identify the brave bottle thrower or the sling-shot carrying "male approx late 20's wearing a light grey shirt and blue denim jeans with shoulder length blond hair", or the seaman sporting both a firearm and "fluro pants".

    How does one identify any member of the blockade, much less all of them? But even if one could identify this person and all the other blockaders, how is one to serve legal process on them? Process servers know from experience that picket lines are dangerous and that process servers have suffered broken legs trying to serve picketers. It would have been difficult to get a process server to venture down to the Melbourne Docks during April/May 1998 to serve process upon hundreds of blockaders.

    But even if one could identify all the wrongdoers and one could serve on all the wrongdoers, someone else would simply take their place. Even if someone were not to take their place, it would take months or years to deal with all wrongdoers, when what is required is a response measured in hours and days. To take two recent examples in which the police failed to remove obstructers: one in England and one in Tasmania. In England the project was delayed six months; (49) in Tasmania for several weeks.(50) In just 8 days, a blockade of the East Swanson Dock caused a direct loss to the stevedores of over $2 million. This ignores the consequential losses of goodwill suffered by the stevedores and the losses suffered by importers, farming and manufacturing exporters and shipping companies. As the Court of Appeal found:

    The affidavit material filed on behalf of the plaintiffs, in particular Mr Steel's first affidavit, establishes to a point of clarity, and as his Honour found, that the picket line has obstructed the delivery of goods to and from Patricks' premises by road, rail and sea. As at 16 April, 9,700 container movements had been prevented from occurring at a direct revenue loss of in excess of $2m. The picket line has caused Patrick Stevedores' customers to re-direct custom to other docks or ports or use alternative means of transport. The picket has caused eight vessels not to berth at East Swanson Dock with a resulting loss in excess of $1m in revenue. It has caused vessels berthed at East Swanson Dock to depart without all their assigned cargo. The picket has resulted in personal injury and has also caused persons working inside Patricks' premises and drivers and their suppliers seeking access to Patricks' premises clearly to have fear for their personal safety and well-being.... (51)

    Legal responses to this type of picketing behaviour, causing this much damage this quickly are next to useless. One cannot respond sensibly to this type of behaviour using legal methods. But the answer does not lie in changing the law or "improving" the process.

    To take one example, an "improvement" along the lines of the broad ranging protection orders in domestic violence situations, might be thought useful. In those cases the common pattern is "for the applicant to obtain an interim ex parte injunction (without the respondent being present in court) order immediately which is effective to protect him (sic) or her once it is served on the respondent.(52) This improvement in the procedure is almost pointless, as the obstructor must still be identified, and served: something that is almost impossible to do quickly in the large-scale industrial disputation situation.

    To take another example, an improvement along the lines of asking the Courts to grant injunctive relief restricting the number of picketers on a picket to (say) 2 or half a dozen, in order to ensure communication and not intimidation occurs on the picket. This improvement may have limited value as all the obstructors must be identified and served: something that is almost impossible in a large scale industrial dispute. Moreover, an order so made could only bind those served:(53) Others will be free to join the blockade in place of those restrained. The Court of Appeal has suggested that others so joining will be guilty of contempt, but this is yet to be tested and in any event contempt proceedings are even slower than injunctive proceedings.

    Thus the only effective answer to large-scale industrial disputation lies with the police. However the police did not and would not act. It was clear by Monday 13 April 1998 that the police had failed to do their job: they had failed to allow persons to pass by train or truck into the premises, they had failed to allow any goods to get in or out, they had failed to prevent gross criminal assaults and trespasses from occurring. And they continued to fail to do so until the end. No court action would have been necessary had the police done their job and the court action that was taken was ineffective because no court action could be effective in large scale industrial dispute situation, without police support. This lack of police support also poses a longer term problem for the court system, because as Justice P W Young has pointed out, "[e]very time a court makes an order that it cannot enforce, the authority of the court is weakened."(54) Thus it is imperative that the State provides "sufficient force to ensure that no government, powerful corporation or united force of workers can be a law unto themselves."(55)

     

    The Failure of the Victoria Police to Keep the Peace

    protesters ... throwing projectiles at security .... police sitting in car in full view of protesters but have not got out of car or driven up to the protesters.(56)

    To discuss the failures of the police is like attempting to discuss the violence associated with the blockade. The failures occurred so often and so consistently that one cannot begin to give more than a flavour of these failures. It is therefore convenient to discuss the failures of the police using the same headings under which the violence was discussed. This approach leaves much out, but it has the advantage of giving some appreciation of what the lack of police support meant to those who had to deal with it.

    (a) The Straddle Carriers

    It may be legitimate to suggest that the allegedly mad driving of the straddle carriers was not the police's fault. It occurred before the police arrived. However, what were the police doing on 10 and 11 April when on both these occasions "persons who approached the straddle carrier had objects thrown at them".(57) Security had allegedly informed the police that they were attempting "recovery" of the straddle carrier:(58) so why were picketers able to prevent "recovery" for 10 days?

    (b) The Cars

    At first blush, it would not appear legitimate to suggest that the allegedly mad driving of the cars was the fault of the police. But one needs to remember that the Court of Appeal referred to 2 separate incidents involving the cars. The first incident is based upon a report of an incident before midnight.(59) It reads as follows:

    3 motor vehicles (sedans) were used to chase down members. Security group had to leap away from the vehicles that were used. At that time, members were in fear for their lives and a call was made to 000 for Police assistance. Inspector Hughes arrived and became the mediator, and quelled the situation.(60)

    The cars were allegedly being driven by employees who remained on site.(61) These employees were allegedly asked to leave(62) by the security guards.(63) These employees allegedly refused to leave and locked themselves in the canteen.(64) The security guards allegedly then requested an MUA official (Terry Russell) to instruct his members of his union to vacate the premises.(65) He allegedly refused. The police were then called again. The report of what then happened is as follows:

    I am told by Security Personnel that Inspector Hughes said that he did not have the resources available to secure the premises. Inspector Hughes then had discussions with some of the employees. Inspector Hughes informed representatives of the security firm that he had told the employees not to operate the machinery, and that the employees in the canteen area were to confine themselves to only that area.(66)

    If true, this is extraordinary. Why were these trespassers not evicted? What point is there in accepting an undertaking to not operate the machinery? Either the persons present were allowed to be on the docks (not merely in the canteen) and operate the machinery or they were not: in which case they ought to have been evicted. During the early hours of the night, it is alleged that the Manager of East Swanson Dock was kept on a boat adjacent to the dock, because "the dock was not secured and [his] personal safety could not be guaranteed."(67) Why could the manager not even enter the dock? Because the Victoria Police had allegedly not cleared the premises when asked and had merely accepted an undertaking. Is it any surprise that it is alleged that the undertaking was broken? The Court of Appeal statement that:

    "[e]arly on the morning of 8 April two employees of Patrick 1 or Patrick 2 who had remained inside the premises, climbed into a red Patricks' vehicle and drove it at speed towards a number of security guards who narrowly avoided injury by jumping out of the way of the speeding vehicle",(68)

    was based on the following allegation:

    I am informed by security personnel and verily believe that at approximately 4:00am on 8 April 1998, 2 employees who had remained on the premises in the canteen climbed into a red Patrick's vehicle, and sped towards a number of security guards. The security guards jumped out of the way of the speeding vehicle, narrowly avoiding injury. I am also informed by security personnel that:

    • after this incident, representatives from FBIS International again telephoned the police;
    • shortly thereafter, a police car arrived, and the police officers stated that they would discuss the matter with Russell; and
    • after a short absence, the police officers returned and stated that they had received assurances from Russell that no more vehicles or machinery would be operated by the employees.(69) [emphasis added]

    Again, if true this is strange. Why did the police not evict these trespassers? They had allegedly broken an undertaking given some four hours previously. On what basis could the Victoria Police have possibly thought it was acceptable for trespassers to remain on the property on the basis of an assurance that "no more vehicles or machinery would be operated". What was required from the Victoria Police was help to rid the docks of trespassers and to do so before midnight? How can the second incident with the cars at 4:00am be blamed on anyone other than the drivers and other than upon the willingness of the police to accept an undertaking to not do anything unlawful. rather than ensure that nothing unlawful was done.

    (c) Violence on the Picket Line: Security Guards retreat

    Turning to the violence on the picket line: the reason allegedly given by the police for its failure to stop the violence on the picket line was lack of resources. For example when the men who the police had allowed to remain on the premises on the undertaking to not operate the machinery, came out of the premises it was described as follows:

    I am informed by security personnel that at approximately 5.00pm some 15 to 20 employees who had been inside the canteen since 7 April 1998 emerged with MUA T-shirts tied to poles, and began shouting to the picketers outside the perimeter fence to storm the gate. The crowd outside the gate became very excited and began yelling and shouting abuse and threats of violence at security guards. This situation lasted for some 10-20 minutes. I am informed by security personnel that representatives from the security firm contacted the police and requested them to intervene. Security personnel told me that the police responded that they did not have the resources to deal with the situation.(70) [emphasis added]

    How could the police seriously suggest that eighteen hours after the dispute started, that they did not have the resources to deal with a situation requiring the eviction of twenty-seven trespassers. How much time did the police need to deploy the necessary resources?

    To deal with another allegation that "protesters ... throwing projectiles at security ... police sitting in car in full view of protesters but have not got out of car or driven up to the protesters": why did the police not arrest "protesters throwing projectiles at security"? A person throwing projectiles at the MCG would be arrested and drummed out of the old Bay 13, with the chant, "You're going home in a divvy van" ringing in her ears? Why weren't these protesters "going home in a divvy van"? Why did the police not even drive up? Why did they not "do anything"? An important opportunity, at the very beginning of the dispute, for police to control the situation was lost. It was not, at any time, regained.

    (d) The Trains

    The police failed to allow the train access to the premises on two separate occasions. First on 10 April 1998 and then on 18 April 1998. Dealing first with 10 April 1998, it is alleged, that before the train arrived, the Manager of East Swanson Dock spoke to Inspector Nation:

    asking to have assistance to remove protesters vehicles off [the] track blocking [the] train(71)

    Needless to say the police failed to move the blockaders or prevent interference with the train signals. Thus the Manager of East Swanson Dock is alleged to have told the police, "due to the inability of the Vic Police to clear the way, and in the interest of public safety we are moving the train back."(72)[emphasis added]

    Later that day, it is alleged that the Manger of East Swanson Dock again called Inspector Nation and reported that "Tim informs him of what is happening tomorrow 11.4.98 and requests [that] Police assist in clearing protesters. Inspector Nation is having a meeting with union and his bosses. He says he can't help without union assistance and police staff."(73) [emphasis added]

    This allegation, if true, that the police did not have the "police staff" and could not enforce the law without the "assistance" of the law-breakers, 3 days into the dispute, is extraordinary. If true, it means that the rule of law simply ceased to apply: it was mob-rule or more correctly mob "assistance". This allegation by itself calls for an inquiry into the Victoria Police's handling of the matter or at least for major reform of the manner in which the Victoria Police handle large scale industrial disputes in the future. And it did not improve. 8 days into the dispute, when a second train arrived, and a forklift was sent to clear the tracks, "the police were unable to control the picketers' assault on the forklift and the officer and his driver believed that they were in grave danger and accordingly withdrew inside the rail gate. The train was unable to gain access to the premises".(74)

    (e) The Trucks

    The Court of Appeal's report of violence associated with the attempted entry of one of the two trucks which attempted to cross the picket line on 13 April 1998 was described above. The alleged report of the other truck driver is as follows:

    We moved off and turned right into Coode Road. Whilst doing our right hand turn we were verbally abused by picketers and threats to life were made by certain people. During this time I felt quite intimidated and did not feel safe. No police officers were seen at the front of picketers.(75)

    This truck was also allegedly damaged by the picketers. Why were "no police officers seen". Why not even a thin blue line? Worse than this, the police allegedly stopped the trucks to allow a union official to explain to the truck drivers that "we would not get through the blockade".(76) It is alleged that after the police stopped the trucks,

    we were approached by a police officer who asked us of our intentions. We replied that we needed to gain entry to Swanson Dock to deliver the containers we had loaded. He advised us that a Union Official would like to speak to us.(77)

    What did the police think the driver's intentions were? Why did he need to ask? He should not have stopped the truck, except to tell the driver that the police were here to ensure that the driver could cross the picket without any chance of damage to the truck or to the driver and to ensure that this was the case, there was a thick blue line of police. Instead, "no police officers were seen".

    The failure of the police thus had the result of bringing East Swanson Dock to a standstill. As the Court of Appeal stated:

    Insofar as the picket can now [at the time of the appeal---24 & 27 April 1998] be called a peaceful one, that is simply because Patricks is no longer attempting to bring containers or other material through the picket and into Patricks' premises, nor is it seeking egress from those premises for any containers for delivery elsewhere.(78)

    The reason that Patricks was not "attempting to bring containers ... through the picket" was, as the Court of Appeal explained, due to police inability to protect persons entering or leaving,

    ... as at 24 April ... Police stationed outside these gates to Patricks' premises have told security personnel that no attempt should be made to enter or leave the premises through any of these gates, as this might result in personal injury and the managers of Patricks' premises have accordingly issued instructions for no-one to attempt to enter or leave the premises by those gates.(79)

    The failure of the police became Python-esque towards the end of the blockade. For example, the police apparently not only issued instructions to Patrick not to attempt to enter or leave the premises, but that it agreed with the unions to make sure that no attempt to enter or leave the premises was made. What else can be made of the footage referred to by the Court of Appeal, in which a union official, is allegedly reported as saying, "Well, it can just clear this way ... we have an agreement ... we've got number 1 gate and the police have got ... what number is this? Number 3 or 4 whatever it is".(80) What were the police doing manning the pickets?

    It gets worse than the police actually manning the pickets. It is alleged that in late April, a petroltruck which had made it through the picket and was refuelling on the premises was approached by a police car carrying TWU officials! The TWU officials "spoke" to the driver of the fuel truck and the fuel truck left the premises. The police car took the TWU officials away! Eric Idle could not have written a better script. This incident by itself, if true, calls for an inquiry into the Victorian Police's handling of industrial disputes. Why did the police fail to assist in the eviction, trespassers of the canteen, yet assist in the eviction of a fuel truck lawfully on the premises? How did the enforcers of the law eventually take on the role of the blockaders? Why did the police so completely fail to carry out their duty?

    Again, this is only a limited discussion of the police inaction. The police response was so underwhelming, that the short discussion above does not do it justice. We can safely assume a trilogy of failure: that the police failed to evict the trespassers, they failed to control the violence and they failed to ensure access by train and truck to the premises. The interesting question is why did this failure occur?

    There are many explanations of the failure of police to act. At the time, commentators implicitly suggested that the police were pushing their own agenda in pursuit of wage claims.(81) Others suggested that Premier Kennett was reluctant to commit police into a situation perceived to be the creation of Patrick.(82) However, these were probably not the causes. The true causes seem to be:

  • lack of "resources"; and
  • lack of understanding of the law.
  •  

    Lack of Police Resources?

    (a) The Problem

    Police were alleged to have said that they did not have the resources to deal with the problem as it developed at East Swanson Dock. For example, the driver of one truck on 13 April saw no police in front of picketers, and his truck was vandalised when he retreated. On 18 April, trucks were not able to enter the premise, because allegedly "there were insufficient police". Attempts by the train to cross the blockade failed for much the same reason. On 10 April 1998, the train did not cross "due to the inability of the Vic Police to clear the way" and on that day the police allegedly said that they could not "help without union assistance and police staff".(83) Similarly the forklift which went to clear the track on 18 April 1998 was beaten back because "the police were unable to control the picketers' assault on the forklift".

    Not only was lack of police resources a problem with the trucks and trains. It was a problem from the first night. Before midnight on the first night, the police allegedly said that they "did not have the resources available to secure the premises", and thus presumably accepted an undertaking from the trespassers not to operate machinery. An undertaking that was allegedly broken a few hours later. And when the trespassers came out from the canteen the next day, allegedly calling for the storming of the gate and "shouting abuse and threats of violence at security guards", the police allegedly "responded that they did not have the resources to deal with the situation.(84)

    I doubt it, but it is arguable that resources were a problem until the end of the blockade. For some reason, perhaps resources, the police apparently instructed Patrick not to attempt to move goods in or out from 24 April 1998, because, "this might result in personal injury". It is difficult to know what the police meant when they repeatedly complained that they had insufficient "resources". This lack of "resources" problem may have one of three possible meanings (perhaps more):

  • The police did not have the required manpower or human resources;
  • The police did not have the required equipment or physical resources;
  • The police could not deploy the resources (human or physical) quickly enough;
  • If "resources" are truly the problem then this problem must be fixed quickly. As Justice Wright said in the APPM dispute, in response to an argument from the police that "the police do no have adequate numbers to control the picketers",

    This is a truly frightening proposition ... it implies that the State lacks sufficient resources to enforce the law... It implies that force or the threat of force can supplant the rule of law. It tends to endorse the law of the jungle. It leads to anarchy. It is plainly unacceptable.(85)

    (b) The Solution

    If "resources" are truly a problem then the solution is relatively simple:

  • appointing more police to overcome the human resources problem;
  • buying trucks with water cannon, more horses, shields and batons etc;
  • putting the extra police and the resources into a functional group dealing with large scale industrial disputes and other civil disturbances to allow quick deployment.
  • If the problem is inadequate numbers or inadequate equipment then the money must be found for more equipment or more men. There must be a thick blue line. That is before we face the crisis British police faced last decade, where a militant coalmining unionist organised flying pickets into phalanxes of angry men 10,000 strong.(86) As is set out below, the prospects for large-scale industrial disruption are likely to increase: the unions have learned the lesson of the Melbourne Waterfront dispute. Though, I suspect (without any real evidence) that the true cause of the police's failure was not "resources" per se, but an unwillingness to devote the required resources because of a misunderstanding by the police of their obligations.

     

    Police misunderstanding of the law?

    (a) The Problem

    I hope that what I have said on the course of these brief reasons may sufficiently clarify the role to be played by police officers in future confrontations between picketers and others arising from industrial disputation.(87)

    It appears clear that the police simply failed to act in accordance with their obligations. "Resources" are not a convincing explanation. It seems that the Victoria Police only devoted the resources necessary to keep things peaceful, rather than the resources necessary to keep the peace. The "hope" expressed by Justice Wright 6 years ago, that his judgment would clarify the role to be played by police remains a "hope". The police reportedly stated that they were dealing in "grey area of the law",(88) when the opposite was true, the law had been clarified by Justice Wright 6 years previously.

    To be fair to the Victoria Police: they have not been alone in misunderstanding the law. The police in Devon in 1981 and the police in Tasmania in 1992 misunderstood their position as well. It is therefore not surprising that the Victoria Police also misunderstood their position. The police were not aided by media "experts".

    For example, it is alleged that early in the dispute, an agreement was reached whereby the police were to be advised of any proposed deliveries to the site in order that they could take 'appropriate steps to maintain the peace so far as possible among the picketers'.(89) Thus on 12 April, in accordance with this agreement, it is alleged the police were given 20 hours notice of a proposed delivery.(90) But police were allegedly "nowhere to be seen" according to the truck driver who arrived the next day. It is difficult to accept that the failure by police to take action on 13 April was purely a 'lack of resources', given the notice that was given. Some other factor was probably at work.

    This other factor was the police's misunderstanding of the law: it seems obvious that the police adopted a policy of co-operation with the picketers. Appeasement was adopted, when the obligation was confrontation. The police allegedly stated that action could not be effective without the assistance and partnership of the MUA. In the words of Assistant Commissioner Allan Roberts "our main concern is avoiding violence and confrontation".(91) But keeping the peace sometimes requires confrontation. The reason is simple. Unless the rule of law confronts the mob, then the power of the mob will always prevail.

    And here were the protectors of the rule of law caving in to the mob: afraid of "confrontation". Commissioner Roberts or his advisors could simply not have read Justice Wright's decision in the APPM dispute: their 'main concern' should have been ensuring that the law was enforced and free access and egress was established. It was the explicit public strategy of the MUA to ensure that Patrick "got no ships, no business, no cargo".(92) And it was clear that they were illegally and violently blockading Patrick to give effect to the strategy. Indeed the Court of Appeal found that:

    there was a strong case made against the MUA appellants that it was their avowed objective to blockade the premises with a view to freezing movement of cargo to and from the wharf and thereby to injure the trade of the respondents by preventing them from fulfilling their contracts with their customers. It is also apparent, as his Honour found, that there is a strong case that they have been achieving this objective with spectacular success.(93)

    In the face of this "spectacular" success in flouting of the law, senior police described the police role as "apolitical", "impartial" and determined by protocols "which provided a framework for industrial disputes to be negotiated".(94) They viewed the court proceedings as "an industrial process" which did not concern them.(95) The misunderstandings of the police were profound.

    Even when an attempt to break the picket was finally made on Saturday 18 April 1998, the police had reportedly established passages of communication. It was reported that the police had agreed to notify union officials 30 minutes before any attempt to cross the picket.(96) If true, this beggars belief. This media report must be wrong. If the unions were given notice, the 'telephone tree' could then call supporters to the docks to ensure "a big presence so... it is difficult for people to be arrested without violence".(97) Misunderstanding then piled upon misunderstanding. Apparently the agreement to notify union officials, before an attempt to cross the blockade was made, became an arrangement whereby assistance to man the picket was provided by the police and apparently then metamorphosed into an arrangement whereby the blockade was enforced by the police carrying TWU officials.

    As an aside, police ineptitude apparently extended across state borders. Senior NSW Police claimed that 'protesters would be arrested for repeated breaches of the peace'. Despite this, Sydney water police were reported to be 'standing by' (98) as boats ferrying the new workforce to the site (given the failure of the police to clear the pickets, water was the only means of access) were hosed down and showered with bricks by unionists on tug-boats. John Coombs, National Secretary of the MUA, described the police involvement: 'my experience with the NSW Police has been excellent. They have done everything in co-operation with us'.(99)

    What greater criticism could be made of the police than this, a comment from the leader of the MUA than that the police "have done everything in co-operation with us"?

    (b) The Solution

    The solution is simple. First there must be a new protocol for dealing with industrial disputes. It must emphasise the following points,

    (i) Intervention by confrontation

    Firstly the police protocol for dealing with industrial disputes must be changed to emphasise that the police's obligation is to intervene to allow people to continue to enter and exit their home or business freely. People must be free to conduct their affairs in an environment devoid of intimidation, violence or harassment or the threat of intimidation, violence or harassment.(100) It must emphasise that the enforcement of the law in the face of opposition of those determined to break it, requires and obliges the police to confront those determined to break the law. It may require violent confrontation.

    (ii) Consultation and Notification

    The police protocol must emphasise that those determined to break the law have no "right" to be consulted or "notified". It must explain that consultation with or notification to persons determined to break the law is anathema to enforcing the law: as it will only give those who are determined to break the law time to try to outnumber and out-position the police.

    (iii) Act early

    It must emphasise that the police have the duty to intervene from the very beginning of a dispute; that to wait is to allow the blockaders time to set up a blockade. As Justice Wright said in the APPM dispute, 'If the police had been asserting and exercising their undoubted authority to move the picketers away from [the entrance to the premises] from the commencement of the dispute, the present entrenched positions ... may not have occurred'.(101)

    (iv) No stopping people attempting to cross

    The protocol must emphasise that it is nonsense to think that a picket is an attempt to communicate. It is an attempt to intimidate, to threaten and to prevent goods getting through the picket. A picket is an attempt to stop, dressed up as an attempt to communicate. The protocol should recognise this and make sure that persons, trucks and trains are not stopped: especially not to allow a union official to communicate". The person most of us wish to avoid is the person who says "I must tell you this". This is even more true on the picket line. The police shouldn't stop a person crossing a picket line to allow a third person to "communicate" a message. The person crossing the picket line is quite capable of stopping himself, even lingering if he finds the message compelling. The police should, under no circumstances, make this decision on behalf the person crossing the picket line: he can do it himself.

    The second part of the solution is, with or without extra resources, to train the police in the new protocol. The police in Cornwall in 1981,(102) in Tasmania in 1992 (103) and (I believe) now in Victoria in 1998 have completely confused keeping things peaceful with keeping the peace. To prevent such confusion occurring in future the police must be trained in the correct protocol.

    Thirdly, to facilitate proper acquisition and retention of this understanding it may be necessary to create a squad along the lines of the Asian Squad, the Bomb Squad or the Dog Squad: a group of highly trained and equipped police able to deal with industrial disputes. There is a Special Response Squad, but that body is almost never used in industrial disputes. Normally, suburban police deal with difficult and violent industrial disputes without any experience or training and are guided only by a protocol that is inadequate and their understanding of their oath to "keep the peace". A squad of appropriately equipped personnel could deploy resources quickly and overcome the situation that occurred with the security guards on the first night. Fearing for their lives, they could only call 000: there was no other number. Further, a correctly trained squad would have the expertise to deal with threats for "wrongful arrest" and claims to a constitutional right to political discussion, and so forth. A squad so formed might understand that this is not a "grey area of law" at all. In the 1980s there was, apparently, such a squad within the Victoria Police: known as the Industrial Disputes Unit. It is time for that unit to be re-established. That unit, by enforcing the law and ensuring prosecution of offenders, can send the message that large-scale picketing is no longer acceptable and that the rule of law will prevail over mob rule.

    Picketing is a relic from the last century. This century, the telephone, the press, radio, television and now the Internet have made communications straightforward. Moreover, the world has moved forward into the broad sunlit uplands: laws against harassment. stalking and vilification make the device of the picket appear medieval.

    With the twenty-first century approaching, the picket must be recognised as a nineteenth century anachronism. It is unacceptable given the massive changes in the way in which society now regards intimidation and harassment; and primitive, given the revolution in communications this century.

    The police must approach picketing in the same way that the last generation of police approached drink driving. Through increased resources, education, public awareness and most importantly enforcement, 1000 deaths/year on Victoria's roads is but a distant memory. With the same energy and commitment the Victoria Police could send picketing back to last century, where it belongs.

     

    Lessons for the future

    on speaking with the organisers outside, they have given us an undertaking that if the meeting does not proceed they will let us take all of your people out under escort(104)

    In Victoria, there are three unions that count: the CFMEU (the construction union), the CEPU (the electrical and plumbing union) and the AFMEU (the metalworkers union). They have strong influence in the building and manufacturing industries and the electrical and plumbing trades. They have strong links with the very left of the Labor Party in Victoria and with each other. Since at least 1997, these unions seem to have adopted the position that "if you hurt one of us, you hurt all of us". These unions were reportedly the key supporters of the MUA during the Melbourne Docks Dispute. For example, the blockaders of the train photographed by The Age on 10 April 1999 included persons wearing electrical trades union shirts. To take another example, Leigh Hubbard of the Trades Hall Council was reported as having established a "telephone tree" (105) to enable "up to 10,000 protesters including workers from the, building and manufacturing industries, [to] man the gates".(106) The alleged ability to get "10,000 protesters" from "building and manufacturing industries" was obviously due to the support from the CFMEU, the CEPU and the AFMEU.

    The leaders of the three unions are Martin Kingham (CFMEU), Dean Mighell (CEPU) and recently Bronwyn Halfpenny (daughter of John) and Craig Johnston have replaced the old guard of the AFMEU---Mr Johnston was allegedly very heavily involved in the Parliament house riot in August 1996. His campaign has involved industrial militancy. Indeed, early this year he was involved in disrupting the building of the biggest distribution centre in the Southern Hemisphere. The picket established around the site was attended with violence. His industrial agenda is called "Workers' First" and is a resurrection from the past: 'industry-wide bargaining...combined with a stated refusal to accept wage restraint or productivity trade-offs'.(107) Mr Johnston is explicit about his attitude to industrial militancy: 'My view is that it would be better if it [violence] didn't happen but you can only push workers so far'.(108) The "Worker's First" campaigners seem now to be attempting to work through the CPSU: the Community and Public Sector Union and presumably other unions.

    These new leaders are young and enthusiastic. The media calls them intelligent. As they are on the left, they have links with the international Socialists, Resistance and other professional protesters. They are children of the August 1996 Parliament House dispute and they have learned that their tactics at the 1998 Melbourne Docks dispute worked. Numbers at the ball is the lesson. With the ability to draw upon the professional protesters, by use of mobile "telephone trees", the unions' tactics in future will be to get numbers at the ball. And it has already started to happen.

    On Sunday 19 July the usual suspects on the far left of the political spectrum violently disrupted a One Nation meeting in Hawthorn. Hanson was to speak. She was unable to do so. People attending the meeting allegedly had clothes torn, spectacles broken and were punched, kicked and verbally abused by the crowd. The police apparently did nothing. This was despite assurances from police that "appropriate measures" would be taken to ensure safe passage to the building---What do police view as "appropriate measures"? Their action was strangely reminiscent of the Melbourne docks dispute. A senior officer spoke the same language of conciliation, consultation and complete failure to enforce the law. He stated:

    on speaking with the organisers outside, they have given us an undertaking that if the meeting does not proceed they will let us take all of your people out under escort(109) [emphasis added].

    "They will let us". The blockaders at the Hawthorn Hanson meeting copied the Parliament House Riot/Melbourne docks dispute formula. Get numbers at the ball, act violently and the police will cave in. It worked at Parliament House in August 1996, it worked to freeze the docks during the Melbourne docks dispute and it worked to prevent Hanson speaking at Hawthorn.

    At least at political rallies, the violence is frequently captured by television. However, during industrial disputes, it is almost never captured; in fact police sometimes prevent video footage from being taken on the grounds that the taking of video footage "provokes" the picketers. Thus while the Coalition and Hanson may have gained some longer. term political benefit by the riots at Parliament House and Hawthorn, the only effect of violence by picketers is to wither away and destroy the financial base and emotional fortitude of the victim.

    Rule of law requires enforcement. Why have the Vital Industries Act 1992? Why bother seeking injunctions from the Supreme Court? Why have a law allowing people to come and go as they please, without intimidation, violence or harassment? Without police enforcement: the statutes, court orders and the common law, which serve to protect free passage, are useless. Unless the police change their approach, mob rule will succeed in permanently ousting the rule of law. As the police have failed to prevent and prosecute violent and threatening picketers, failed to enforce the right for people to go about their lawful business, failed to enforce injunctions of the Supreme Court (which would not have been necessary had the police prevented the picket getting out of hand), and have thus failed to prevent the blockading of the docks and the blockading of political gatherings, the rule of law is dying in Victoria. The police must fight to re-establish the rule of law.

    Picketing is a relic from the last century. This century, the telephone, the press, radio, television and now the Internet have made communications straightforward. Moreover, the world has moved forward into the broad sunlit uplands: laws against harassment, stalking and vilification make the device of the picket appear medieval.

    With the twenty-first century approaching, the picket must be recognised as a nineteenth century anachronism. It is unacceptable given the massive changes in the way in which society now regards intimidation and harassment; and primitive, given the revolution in communications this century.

    The police must approach picketing in the same way that the last generation of police approached drink driving. Through increased resources, education, public awareness and most importantly enforcement, 1,000 deaths/year on Victoria's roads is but a distant memory. With the same energy and commitment. the Victoria Police could send picketing back to last century, where it belongs.



    Appendix 1---Court of Appeal's findings regarding violence at Melbourne Docks

    "The affidavit material before the court asserts that numerous acts of violence and intimidation have occurred on and around the picket line in the course of the picket, beginning on 7 April 1998, and which are still continuing. The conduct of the picketers is said to have been characterised by the following. Projectiles have been thrown into the East Swanson Dock premises from outside the fence which borders those premises on a regular basis. Security personnel and employees of Patricks in the premises within throwing distance of the fence have been subjected to bombardment by projectiles thrown and catapulted from outside the fence by picketers. The projectiles include ballbearings, steel nuts and rocks and include heavy bolts, medium bolts, numerous golf balls, planks of wood, half bricks and stones. The affidavits assert that other dangerous objects, some of which are explosive in nature, and a caltrop, i.e. an implement with spikes used to puncture tyres of vehicles, have been thrown in by picketers. Security personnel and management employees have been repeatedly subjected to serious abuse, threats of physical violence and repeated threats that they will be killed. On 11 April flares were fired at the railway gate from outside the fence and shortly afterwards a lit projectile was thrown over the gate. A rock thrown from outside the fence on 11 April smashed a window in a forklift. The perimeter fence and gates have been subjected to ramming and general assault. For example, on 12 April a vehicle driven by a picketer rammed into the P & 0 gate at the premises in an apparent attempt to destroy the gate, Firearms have been pointed at security personnel and on 12 April 1998 a ship bearing the name "Jang Jinghe" was spotted by security personnel with a person on board brandishing a shotgun and pointing it at security personnel.

    On 7 April 1998, some 57 security personnel arrived at East Swanson Dock, 30 by boat and the remainder by bus. When the security guards entered the premises the employees present on the site immediately began shouting and yelling abuse. Some of these employees (nearly all of whom, for reasons we have, already stated, would have been members of the MUA) climbed into straddle carriers. These are large 69 (1) ton steel vehicles which lift, carry and stack containers within the terminals. Despite their massive size they arc highly manoeuvrable. Some of the employees climbed into these straddle carriers and drove them at speed directly towards the security guards. A number of security guards were chased by the straddle carriers around the dock. One security guard narrowly averted being crushed to death against a metal container by a straddle carrier only by leaping out of its path at the last minute and sustaining minor injuries. Another security guard was clipped by a straddle carrier, and his radio was knocked from his hand and crushed by the carrier. Another security guard who was chased by a straddle carrier fled behind an 11,000 volt electric transformer unit. The person driving the straddle carrier rammed the transformer in an apparent attempt to make contact with the security guard. Another straddle carrier repeatedly drove back and forth over a large pile of personal possessions belonging to the security guards.

    That evening three motor cars driven by employees of Patrick 1 or Patrick 2 chased security guards around the compound for a number of minutes. Those who were chased by the straddle carriers and these three cars believed their lives to have been in grave danger.

    One straddle carrier was left against the rail gate in a position adjacent to the picketers with only the cyclone fence between it and them. Representatives of the Patrick companies attempted to move it on two occasions, on 10 and 11 April, but persons who approached the straddle carrier had objects thrown at them by picketers outside the fence. The straddle carrier thus remained against the fence until a recovery operation was finally successful on 18 April.

    Late on 7 April three buses arrived outside the main gate of East Swanson Dock bringing approximately 100 persons. One Patrick vehicle, a utility, situated close to the gate to the East Swanson Dock premises was hit by numerous projectiles and sustained significant panel damage and windscreen damage. Furthermore, some of the picketers cut holes in the cyclone perimeter fence of the premises and entered at various times during the night. The security personnel guarding Patricks' premises on the night of 7 April claim that they were subjected to many threats of physical violence and abuse from outside the fence and picketers made comments to security guards to the effect "We know where you live. We're going to get you tonight" and 'You're dead". Many of the people outside the gate were throwing empty stubbie bottles, half bricks, golf balls, one inch nuts, container handles and rocks over the fence at the security guards. it was necessary for the security personnel to move away from the fence and stand beyond throwing distance from the fence for their own personal safety.

    Early on the morning of 8 April two employees of Patrick 1 or Patrick 2 who had remained inside the premises, climbed into a red Patrick's vehicle and drove it at speed towards a number of security guards who narrowly avoided injury by jumping out of the way of the speeding vehicle.

    Early on 8 April three picketers jumped a fence of the premises and hurled bottles at security guards. One picketer swinging wildly a large piece of wood confronted a guard. The three picketers attempted to start vehicles and forklifts before being stopped by guards whereupon they jumped back over the fence.

    On 9 April three picketers jumped the fence and threw rocks at two security guards who were travelling in a car whilst on duty. The rocks smashed the driver's side window of the car.

    On 10 April protesters threw stones and other projectiles at various times during the day. At 10.54 a.m. on that day Matthew Purcell, the fifth appellant was identified by security guards as being part of the picket and as throwing stones into the premises.

    On 10 April a train arrived at East Swanson Dock from Adelaide carrying 94 containers which contained materials for export including manufactured goods and primary and mineral produce. When the train arrived, two or three picketers approached the signal system and interfered with it, switching the lights from green to red. Picketers congregated at the gate and surrounded the engine. The picket remained in place and blocked the entry of the train into the premises and the train accordingly withdrew with all its containers still on board. The train was relocated to the Dynon Railhead in a rail freight terminal adjacent to the docks.

    On 11 April a number of trucks were scheduled to arrive at East Swanson Dock to collect and/or drop off cargo in containers. Several hundred picketers were on Appleton Dock which leads into Anderson Road. The trucks were unable to enter Anderson Road because of the presence of picketers.

    On 13 April two trucks operated by KSK Contractors carrying containers of fruit attempted to enter East Swanson Dock. They were unable to pass through the picket at the Anderson Road Gate. Those on board the trucks were abused by the picketers and their lives threatened. Metal spikes were found in one of the left-hand trailer tyres and the prime mover was damaged. A report by a passenger in one of the trucks contains the following statement:

    We turned right into Coode Road when the crowd rushed at the trucks. Objects were thrown at us, one breaking the left-hand side front screen in front of me. People tried boarding the vehicle, banging on doors, windows and mudguards. People tried to jump on other parts of the TAC vehicle. They tore off all the front indicators as well as damaging the front guards. I also saw objects being thrown into the wheels. Both trucks vacated the area. We then returned to QCM container yard and unloaded the trucks. We were followed all the way by two vehicles (a green Holden stationwagon and a red Mazda RX7), both of which stopped outside QCM yard. The trucks were then unloaded and both proceeded back to Webb Dock where at the entrance we were abused by a much smaller crowd of people, one of whom spiked the left-hand rear tyre on the trailer.

    On 14 April the vessel "Botany Bay" was at that stage berthed at East Swanson Dock. The ship's captain registered concerns with his employer regarding the safety of the crew, who were subjected to verbal abuse and threats from picketers at the Coode Road gate and were pelted with missiles including bolts, nuts, golf balls, fire crackers, flares and other projectiles, many of which were fired from sling-shots. A member of the ship's crew was prevented from receiving medical treatment in the normal way and an alternative means by launch had to be found. The captain of the "Botany Bay" decided that the vessel should leave East Swanson Dock prematurely in order to protect the health and safety of those on board.

    The first affidavit of Mr Steel, sworn 16 April 1998, stated that several hundred picketers then remained outside the entrance to East Swanson Dock on Anderson Road and on the perimeter. Anyone inside the fence who approached the perimeter fence was subjected to abuse and pelted with projectiles. The only means of access to and egress from East Swanson Dock was by boat and accordingly the workforce and security and management personnel were then able to enter the dock only by this manner, which was itself not without danger. The small boats transporting persons to and from the dock were regularly pelted with rocks, bottles and other projectiles from adjacent land. Mr Steel swore:

    It is clear to me that any attempt to enter the dock through the gates would place those entering the dock in extreme physical danger. In my view it would be irresponsible to even attempt coming through the gates. Aside from the incidents of the obstruction of the train and the attempt by the trucks to enter the premises on 11 April 1998 no such attempt has been made.

    Mr Steel further stated that he had seen amongst those manning the picket many members of the MUA who worked for Patrick 1 and Patrick 2 including several officials. Mr Steel swore that officials of the MUA held themselves out to be representatives of the picket, have played a prominent role in attempting to persuade persons to observe the picket and are spokespersons for the picket with the news media. He swore that the picket line is clearly identified as an MUA picket line and that in his experience,

    There is an understanding in the industry that crossing a picket line identified with the MUA involves considerable personal risk.

    It is apparent from the affidavit material, however, that as time progressed the dispute escalated and many persons other than members of the MUA were present at the promises.

    In reasons for judgement delivered on 20 April 1998 the learned judge said in granting injunctions against the MUA defendants to whom we have already referred that:

    On 23 February last I granted an interlocutory injunction against the MUA and certain of its officers at the instance of two other companies in the Patrick group. At that time I described the damage that was being inflicted on those plaintiffs by members of the MUA as alarming. That has proved to be no overstatement or exaggeration of the situation. The material presently before the court demonstrates that many of the persons who have been picketing East Swanson Dock and Webb Dock, and who are presently doing so, have been guilty of serious criminal behaviour in that, amongst other things, they have committed a trespass on the land rightly occupied by the plaintiff, they have committed a nuisance involving obstruction, threats, harassment and besetting by hostile intent, they have been guilty of intimidation and have wilfully and unlawfully interfered with contractual relations between the plaintiffs and their customers such as to injure the plaintiffs. There has been no denial of their behaviour in that regard by the MUA or the other named defendants to the proceeding, although they have, in my opinion, had sufficient time to do so held they been so minded.

    In his second affidavit, sworn 20 April 1998, Mr Steel said as to the events at Webb Dock that there had been a picket outside Patricks' premises there preventing access to or egress from the dock since 8 April 1998. Mr Steel's evidence was that no attempt had been made by the Patrick plaintiffs or any other person to enter or exit from the Webb Dock gate since 8 April because, from his knowledge of the attempts of trucks and personnel to enter East Swanson Dock, any such attempt would have been blocked by a picket. Mr Steel swore that he believes the picket at Webb Dock has been organised by the MUA and its officials and is being co-ordinated with the picket at East Swanson Dock.

    On 16 April 1999 a second judge of the Supreme Court on the application of the MPC, granted an interim injunction against the MUA and 11 persons identified as being on the picket, the effect of which was to prevent the defendants from occupying, remaining on or entering the land defined in the order which included East Swanson Dock and Webb Dock and surrounding areas. The interim order also restrained the defendants from preventing, hindering or interfering with access to and egress from the land.

    On 18 April Victoria Police, who had been present in varying numbers at the respective dock sites since 7 April, and whose presence had been necessary on a number of occasions to control the picketers, attempted to clear access to East Swanson Dock Attempts were made to clear a path to enable 30 trucks carrying containers to proceed through the Coode Road gate onto Patrick's premises but the carriers refused to go ahead with this transport being fearful of intimidation from the picketers. One contractor driving a truck who had driven his truck to a position about 200 metres from the gate was told by the police that it would be too dangerous for him to go between the picketers and that he would not be allowed to go any further. As a consequence the truck was not able to enter Patricks' premises. Mr Steel swore that it remained extremely dangerous for anyone wishing to deliver cargo to or take cargo from Patrick's premises through the Coode Road gate, because there were insufficient police present to restrain picketers present at that gate and those who might move there. On the advice of Victoria Police, attempts to move cargo through the Coode Road gate ceased and have not recommenced since 18 April.

    On 18 April, with the assistance of police, a maintenance crew commenced recovery operation of the straddle carrier, forklift and prime mover placed near the rail gate, during which 20 to 30 picketers congregated behind the police lines on Appleton Dock and shouted abuse at Patrick personnel. That morning a train arrived carrying shipping containers for Patricks but there were numerous objects such as concrete blocks across the track about 200 metres up the track from Patricks' premises. Mr Steel sent a forklift outside the rail gate to remove these obstacles. The forklift was driven by Patricks' National Technical Services Manager together with a tradesman. When the forklift was driven towards the obstructions outside the gate, picketers attempted to force their way into the forklift cabin and a side window on the forklift was broken by what appeared to be a large piece of wood. The police were unable to control the picketers' assault on the forklift and the officer and his driver believed they were in grave danger and accordingly withdrew inside the rail gate. The train was unable to gain access to the premises.

    While Mr Steel was present at the rail gate area on 18 April he was spat upon by picketers, and coffee was thrown over him and at one stage a yellow liquid which he believed to be urine was thrown over him by a person or persons on the picket. Picketers constantly called out his name and he heard a number of comments to the effect of "We're going to get you" and "We know where you live".

    Since 18 April, a number of shipping containers have blocked access to the Anderson Road gate. Picketers have since that time maintained occupation of the Anderson Road gatehouse and the police have been unable to secure the Anderson Road gate. Picketers continue to occupy the plaintiffs' gatehouse inside the Anderson Road gate.

    The affidavit material filed on behalf of the plaintiffs, in particular Mr Steel's first affidavit, establishes to a point of clarity, and as his Honour found, that the picket line has obstructed the delivery of goods to and from Patricks' premises by road, rail and sea. As at 16 April, 9,700 container movements had been prevented from occurring at a direct revenue loss of in excess of $2m. The picket line has caused Patrick Stevedores' customers to re-direct custom to other docks or ports or use alternative means of transport. The picket has caused eight vessels not to berth at East Swanson Dock with a resulting loss in excess of $1m in revenue. It has caused vessels berthed at East Swanson Dock to depart without all their assigned cargo. The picket has resulted in personal injury and has also caused persons working inside Patricks' premises and drivers and their suppliers seeking access to Patricks' premises clearly to have fear for their personal safety and well-being. Security guards have been hit by projectiles fired from sling-shots; they have been menaced by firearms and they have been attacked by projectiles of wood, bolts, golf balls, stones and stubbies and they have been chased by speeding vehicles. Wilful damage to property has been caused with windows being smashed, tyres spiked and vehicle panels have been damaged and fences cut. There can be no question that this damage was the intentional product of the picket line, at least insofar as the MUA appellants are concerned. This material entitled the judge to find, as he did, that there was a strong case made against the MUA appellants that it was their avowed objective to blockade the promises with a view to freezing movement of cargo to and from the wharf and thereby to injure the trade of the respondents by preventing them from fulfilling their contracts with their customers. It is also apparent,, as his Honour found, that there is a strong case that they have been achieving this objective with spectacular success.



    Endnotes

    (1) R v Commissioner of Police (1992) 44 IR 214 AT 221-222.

    (2) See also C Oldfield 'The APPM Dispute', in For the Labourer is Worthy of his Hire: The Proceedings of a Conference of the H R Nicholls Society 1992), vol.12.

    (3) Patrick Stevedores Operations Pty Limited & Others v Maritime Union of Australia & Others, Transcript of Proceedings (20 April 1988).

    (4) Maritime Union of Australia & Ors v Patrick Stevedores Operations Pty Ltd & Anor [1998] VICSC 52 (28 April 1998) at 27.

    (5) The blockage began to assemble during the (approximately) 18 hours between 10.30 p.m. on Wednesday, 7 April 1998 and 5.00 p.m. the next day when the trespassers were evicted.

    (6) The first trucks sought to cross the blockade on the afternoons of 11 and 13 April 1998.

    (7) The train attempted to cross the blockade on 11 April 1998.

    (8) See 'East Swanson Dock during April and May 1998' below.

    (9) See 'Industrial Disputes: Some Basic Legal Principles' below.

    (10) See 'Level of Violence on the Melbourne Docks' below.

    (11) See Appendix discussing the details of violent incidents that occurred during the waterfront dispute.

    (12) See 'Lack of Police Resources?' below.

    (13) Further, this paper does not consider the blockade of Webb Dock during the 30 day blockade at Swanson Dock.

    (14) The first wildcat strike ran from 16 to 18 February 1998 and the second ran from 19 to 21 February 1998.

    (15) These strikes commenced in late February 1998 and ended on 7 April 1998. There were no strikes in Melbourne during this period because of the Supreme Court order of 23 February 1998.

    (16) The Federal Court proceedings were heard by Justice North at first instance and then appealed to a Full Court of the Federal Court and then to the High Court during April and May1998.

    (17) Patrick's injunction application was heard on Monday, 20 April 1998.

    (18) The appeal was heard on Friday, 24 April 1998 and Monday, 27 April 1998.

    (19) The court has not yet handed down its decision in the contempt proceedings.

    (20) See the definition of "breach of the peace" in P G Osborn, A Concise Law Dictionary, 1964, p 55.

    (21) Police Regulation Act 1958, Second Schedule Form A (Vic):

    "..from this date, and until I am legally discharged; that I will see and cause Her Majesty's peace to be kept and preserved; and that I will prevent to the best of my power all offences against the same.."

    (22) See discussion below in 'Lessons for the Future'

    (23) Referred to in N R Evans, 'Trade Unions and the Common Law', in In Search of the Magic Pudding: Proceedings of the H R Nicholls Society (1988) vol. 5, ch. 13, pp.85-86.

    (24) 20 April 1998, Supreme Court.

    (25) 28 April 1998, Court of Appeal.

    (26) Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia & Ors [1986] VR 387 at 387, lines 39-50.

    (27) R v Hancock and Shankland [1986] 1 AC 455.

    (28) 28 April 1998, Court of Appeal.

    (29) See Appendix.

    (30) 28 April 1998, Court of Appeal.

    (31) The evidence: para 83 affidavit of Steel is that the straddle carriers weigh 69 tonnes, not 69 tons as recorded in the Court of Appeal's judgment. Nothing much turns upon this though, as 1 (gross or long) ton = 1.016 tonnes and 1 (net or short) ton = 0.907 tonnes: see The Economist, Desk Companion, 1992, 21.

    (32) 28 April 1998, Court of Appeal.

    (33) Ibid.

    (34) Ibid.

    (35) Ibid.

    (36) Ibid.

    (37) Ibid.

    (38) Ibid.

    (39) Ibid.

    (40) Ibid.

    (41) Ibid.

    (42) Affidavit of Steel, 16 April 1998, paragraph 73(h).

    (43) Exhibit TRS-13 to affidavit of Steel, 16 April 1998.

    (44) Affidavit of Steel, 16 April 1998, paragraph 73(a),TRS-13.

    (45) Linnell G., "The man in demand on the waterfront: agent for change or agent provocateur?" The Age, 10/4/98, p5.

    (46) 20 April 1998, Supreme Court.

    (47) Affidavit of Steel, 16 April 1998, paragraph 73(b).

    (48) [1992] 44 IR at 222.

    (49) R v Chief Constable of Devon [1981] All ER 826, at 837e.

    (50) R v Commissioner of Police (Tas); Ex p APPM (1992) 44 IR 214, at 214.

    (51) 28 April 1998, Court of Appeal.

    (52) Seddon, N, Domestic Violence in Australia: the Legal Response (1993) The Federation Press.

    (53) Court of Appeal.

    (54) Mr Justice P W Young in The Australian Law Journal, at 401, June 1998.

    (55) Ibid.

    (56) Exhibit TRS-13---11 April 1988 16:25.

    (57) Court of Appeal.

    (58) Exhibit TRS-20 to affidavit of Steel, 16 April 1998.

    (59) At 10.50 p.m. (i.e. 20 minutes after the 57 security guards first arrived).

    (60) TRS-19 affidavit of Steel, 16 April 1998.

    (61) Court of Appeal.

    (62) About 11.00 p.m.

    (63) Affidavit of Steel, 16 April 1998, paragraph 88.

    (64) Affidavit of Steel, 16 April 1998 paragraph 90.

    (65) Affidavit of Steel, 16 April 1998, paragraph 89.

    (66) Affidavit of Steel, 16 April 1998, paragraph 90.

    (67) Affidavit of Steel, 16 April 1998, paragraph 77.

    (68) 28 April 1998, Court of Appeal.

    (69) Affidavit of Steel, 16 April 1998, paragraph 97 & 98.

    (70) Affidavit of Steel, 16 April 1998, paragraph 104.

    (71) TRS-25, 13.36, Affidavit of Steel, 16 April 1998.

    (72) TRS-25, 15.01, Affidavit of Steel, 16 April 1998.

    (73) TRS-25, 15:58, Affidavit of Steel, 16 April 1998.

    (74) 28 April 1998, Court of Appeal.

    (75) Affidavit of Steel, 16 April 1998, paragraph 128.

    (76) Ibid.

    (77) Ibid.

    (78) 28 April 1998, Court of Appeal.

    (79) Ibid.

    (80) Ibid.

    (81) "MUA cops new soft approach", The Age, 26 April 1998.

    (82) "Police primed to play part: Kennett", The Australian, 21 April 1998.

    (83) TRS-25, 15:58, affidavit of Steel , 16 April 1998.

    (84) Affidavit of Steel, 16 April 1998, paragraph 104.

    (85) R v Commissioner of Police (1992) 44 IR 214, at 221-222.

    (86) Referred to in N R Evans 'Trade Unions and the Common Law', in In Search of the Magic Pudding: Proceedings of the H R Nicholls Society (1988) vol.5, ch.13, p.86.

    (87) (1992) 44 IR at 222.

    (88) The Age, 19 April 1998.

    (89) Affidavit of Steel, 16 April 1998, paragraph 125.

    (90) Ibid.

    (91) Munro I & Silvester J 'MUA cops new soft approach' The Age, 26 April 1998.

    (92) Hannan E & Kermond C 'We'll win vows union' The Age, 11 April 1998.

    (93) 28 April 1998, Court of Appeal.

    (94) For example, The Sydney Morning Herald, 16 April 1998.

    (95) The Age, Sunday 26 April 1998.

    (96) Hannan E & Kermond C, 'We will not be moved: Unions' The Age, 18 April 1998.

    (97) The Age, Sunday 26 April 1998.

    (98) The Australian, 11 April 1998.

    (99) The Australian, 11 April 1998.

    (100) For an explanation of the principle that 'peace' in the context of police obligations refers to law-enforcement rather than keeping things peaceful, see "Some Basic Legal Principles re Industrial Disputes" of this paper. There has been some with Lord Denning in the Chief Constable case (above n1) as to whether obstruction itself amounts to a breach of the peace, but there is agreement that obstruction involving face to face confrontation should give rise to a reasonable apprehension of a breach of the peace, which may necessitate police intervention.

    (101) APPM 218-219.

    (102) R v Chief Constable of Devon [1981] 3 All ER 826.

    (103) R v Commissioner of Police (1992) 44 IR 214.

    (104) Herald Sun, 21 July 1998.

    (105) The Age, 18 April 1998

    (106) This statement was allegedly made by a police officer at a demonstration at a One Nation meeting in Hawthorn. Sunday-Herald Sun, 19 April 1998.

    (107) National Secretary of the MUA, John Coombs, quoted in Hannan E, Warriors from Labor' Great Battles Return to the Fray, The Age, Saturday, 30 May 1998, 12.

    (108) Ibid.

    (109) Herald sun, 21 July 1998.



    Appendix endnote

    (1) The evidence: para 83 affidavit of Steel is that the straddle carriers weigh 69 tonnes, not 69 tons as recorded in the Court of Appeal's judgment. Nothing much turns up on this though, as 1 (gross or long) ton = 1.016 tonnes and 1 (net or short) ton = 0.907 tonnes: see The Economist, Desk Companion, 1992.



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