The Third Way: Welcome to the Third World
The Police, the Parliament,
the Premier, the Chief Commissioner, and the Police Association:
Developments in Victoria
Introduced by Des Moore
Stuart Wood was educated at the school which seems to delight in producing Victorian Premiers from both sides of the political fence and he then went on to obtain honours in law from Melbourne University, as well as a science degree. He also found time to chair the Ormond College Students club and to obtain a blue in hockey. He was admitted in 1993 and practiced first as a solicitor in the employee relations section of Freehills before being called to the bar in 1995. His bar practice has specialised in employment and industrial relations law and he is not afraid of stating in his CV that he acts principally for those much criticised representatives of modern capitalism, that is, large corporations.
However, HR Nicholls' members have come to know Stuart principally as a result of his courageous decision to do more than simply represent Patrick in the waterfront dispute. I am referring, of course, to his devastating critique to this Society in August 1998 of policing policy in the waterfront dispute and to his preparedness to offer subsequent critical public comment on the issue. Stuart's 1988 paper raised important issues of public policy and demonstrated beyond reasonable doubt that the Victorian Police had failed to implement the law as laid down by the Victorian Supreme Court, and had no reasonable excuse for such failure. Any fair minded person reading that paper would find it virtually impossible not to conclude that, if the police had acted half way responsible, the attempted reform of the waterfront, with all the potential flow-on effects, would have succeeded. Although Stuart's paper did not review the proceedings in the Federal Court or the High Court, by implication it raised serious concerns about the responses of the Federal Court in particular, adding to the concerns about that Court previously outlined before the Samuel Griffith Society.
As members will be aware, there has been considerable subsequent follow-up by the Society on the issues raised by Stuart's paper and he will be updating us further. However, I thought I should mention two interesting points that I have picked up as a result of research I have been undertaking on the constitutional relationship between police forces and governments.
First, in Australia police forces are created by statutes which generally reserve the right of the relevant Minister to issue directions. For example, subject to consulting with specified persons, the Federal Minister of Justice has the power to issue directions to the Federal Police Commissioner provided such directions are published. This provides protection against directions used for political purposes. So far, I have not been able to ascertain whether the Victorian Minister has the power to issue directions or whether he has done so.
Second, there is a Council whose members comprise the various Police Ministers and which meets from time to time to try to agree on common policies as between the States. I have been informed that this Police Ministers Council has under active consideration a document setting out 'national minimum guidelines for incident management, conflict resolution and the use of force.' This is relevant to the Society's letter of 6 October 1998 to Police Minister McGrath requesting a 'clear statement of Government policy with regard to the handling by police of violent demonstrations, whether they take place in the context of industrial disputes or otherwise'. Perhaps we will (at last) receive a response to that request after the November meeting of the Council.
I should also report on the latest police failure to come to my attention. This involved the closure of an East Melbourne street by a trailer placed there by the Trades Hall Council as part of a demonstration outside the office of the Democrats with the object of intimidating them to vote in a certain way. When a local resident complained to the officer in charge of the ten police in 'attendance', the astonishing response was 'it may be illegal but we are not going to do anything about it; this way they don't punch us up and we don't punch them up'.
In August 1998, I presented to the HR Nicholls Society an analysis of the failure of the Victorian Police to realise and implement their duty to enforce order at the violent demonstrations and picketing during the waterfront dispute.(1) I suggested it was vital to correct the failure of law enforcement bodies to discharge their obligation to keep the peace and to prosecute those who disrupt it, not least because the violence and disruption experienced on the Melbourne Wharves could be re-enacted in the future.
This analysis will track events postdating the wharves dispute. Several separate violent public incidents since, from One Nation party meetings to anti-NATO protests, demonstrate that police ineptitude has continued. The police's own account of their failure to enforce order---lack of resources---is alone a simplistic explanation that camouflages a complex web of causes. Inadequate understanding of the law amongst police officers, the pressures of a litigious society, and anti-police victimisation are far more compelling forces driving the recurring pattern of police passivity in the face of violent protests and abuse of basic civilian rights.
To place this discussion in context, it will be useful to revisit briefly the violence and intimidatory behaviour witnessed last year on the docks, and the police's failure to restrain it. The Court of Appeal in Victoria learnt from uncontested affidavit material that a series of violent incidents occurred, including dangerous missile hurling, threats of physical violence, smashing of property, all amounting to 'serious criminal behaviour'. Security guards had their lives threatened. They were chased with saddle carriers and Patrick's motor cars. A forklift driver was attacked as he attempted to clear a railroad. A ferryboat transporting Patrick's employees was bombarded with rocks. Threats were made by telephone to employees in their own homes---and to their children. During the dispute, police
- failed to prevent and prosecute violent picketers;
- failed to enforce the right of people to go about their lawful business;
- failed to enforce injunctions of the Supreme Court; and
- ultimately failed to prevent the blockade of the docks.
Despite overwhelming evidence tendered in court of serious violence, intimidation, threats, property damage, trespass and other criminal offences, not one charge was laid. And despite this strange performance, three senior officers responsible for police conduct during the waterfront dispute were decorated by the Police Commissioner with High Commendation awards.(2)
The lessons of police failures on the waterfront have yet to be learnt. Some 15 months after the policing debacle on the Melbourne waterfront, almost exactly the same thing happened. Four large unions blockaded Shell's Geelong refinery and LPG terminal for over 3 weeks. No LPG tankers could get out, no petrol tankers could get out, ships delivering fuel to the Pacific Islands were delayed, and the only train line into the refinery was rendered impassable. Indeed the only LPG tanker driver who tried to run the blockade was spat at, threats were made to his family and he was too scared to go near the blockade again. His report of the incident, on the 2nd night of the blockade, was that the exit was blocked by 3 motor cars and approximately 20 to 30 men:
- 'As I approached the exit gate, these men all started chanting the terms: scabs and Shell's puppets and I was further told that I couldn't hide behind the gate forever. I was told that they knew where I lived and they would be waiting there for me. One man asked me if I'd spoken to my family, while another spat on the side of my face. After I regained my composure, I asked these gentlemen if I could be given a clear exit from the facility and was told 'just try it'. I paused for approximately 30 seconds in an attempt to let the situation settle down and enable me to discuss the matter further. As the chants and insults only worsened I decided that in the interest of safety to all concerned to back our vehicle away from the gate. I was then involved in a short meeting with 5 of the picketers at their request, where I informed them we were acting as per our contract agreement with Shell Australia Ltd. The spokesperson for the group replied that whatever steps were necessary to prevent our loaded vehicle from leaving the facility would be taken. They further said that if we were to unload our vehicle at the terminal that we would then be able to leave.'(3)
The blockaders dictating the manner in which passage was to occur. Backed up by the violence and threats of violence. Much the same behaviour as occurred during the waterfront dispute. As a result of this behaviour, no chemicals necessary for the operation of the refinery could be brought in and the refinery came close to shutting down: a situation that would have led to petrol rationing, large-scale industry shutdown and losses running into millions of dollars. Only one policeman turned up to clear the passage to the LPG terminal. His efforts were comical. The report was as follows:
- 'I advised [the police officer] that we needed to move the vehicles which were blocking the entry and exit gates for safety reasons ... [the police officer] and I then walked out to the annex where [picketers] were standing in a group together. I again repeated the request that the vehicles blocking the entrance and exit gates be removed. [A picketer] replied that they had the right to block the entry and exit with the cars and that he had a piece of paper from the Commission to prove that they had this right. [The police officer] asked for the piece of paper and stated that if it did exist it should be left at every site involved. The piece of paper from the Commission could not be produced and [the police officer] said that he would take [the picketer's] word regarding the paper from the Commission. [The police officer] then informed me that he had no authority to move the cars and that he was happy with the situation that the keys be left in the ignition of the cars.'(4)
It beggars belief that a policeman in this state can act in this manner, apparently without censure. Perhaps he is to be given a commendation, like the police who failed to uphold the law in the waterfront dispute? By doing nothing, he allowed the violent wrongdoers to flout the law. This policeman effectively sanctioned this behaviour and by doing so became a partner in the blockade. The response that was needed was a quick, overwhelming display of force to those who would use force to break the law. Instead there was a slow, underwhelming display of appeasement to the mob. And it got worse. The police were basically absent until the Supreme Court granted an injunction 10 days into the blockade.
Then the police doubled their numbers from 1 to 2. They read the terms of the Supreme Court injunction to the blockaders and then did nothing, stating, 'They're not moving and they claim a legal right to be there'. The police left, another tanker was unable to leave: the result was a Supreme Court injunction and basic laws regarding free passage were simply ignored. This was over 2 weeks into the blockade.
Finally, some 2 weeks into the blockade, the police did do something. They sent the Special Operations Group down to the blockade and were able to get 4 tankers in. The refinery normally gets 40 trucks coming in and out per day. But even the Special Operations Group were unable to get the (filled) tankers out. The mobile phone wielding organisers had lifted numbers at the blockade to over 100 by the time the tankers had filled and were ready to leave. The police then negotiated with representatives of the Geelong Trades and Labour Council. More similarities with the waterfront dispute. Negotiation instead of enforcement. The tankers could not get out and were snuck out a side gate some 2 days later, at around 5am. From that time on, Shell did not try to bring any tankers through. As even the police, backed up with a Supreme Court injunction could not enforce rights of free passage.
It was almost a re-run of the waterfront dispute. Police did not know the law. Police acted too slowly. Police deployed insufficient resources. Police preferred negotiation over confrontation and appeasement over enforcement. The organisers of the blockade won: better communication, better deployment of resources, better commitment to their objectives and better tactics. Numbers at the ball threatening overwhelming force won. The police were unable or unwilling to get numbers to the ball and were unable or unwilling to use force to uphold the law, a Supreme Court injunction and the rights of free passage.
After 10 days, the Supreme Court granted an injunction restraining the unions from organising the blockades, and after another 10 days the Supreme Court was about to be asked to grant a similar injunction restraining individual blockaders. The reason the Supreme Court had to intervene, was the police did nothing: no worse than nothing. They effectively became partners in the blockade. Again, it was the same story as the waterfront dispute.
Large workplaces are not the only context in which Victorian police have failed to protect or even consider the rights of what Oliver Stone's President Richard Nixon called the 'non-shouters and non-demonstrators.' Thanks to police ineptitude, violent mobs have successfully blockaded not only workplaces, cargo or commercial transactions but also lawful, democratic activities. Police failure to enforce the law and exercise due force has been apparent at the following incidents:
- the Melbourne waterfront dispute, involving industrial action during March and April 1998;
- at a political meeting on 19 July, 1998 in Hawthorn, Melbourne, where controversial politician Pauline Hanson was scheduled to speak;
- Two separate demonstrations outside the headquarters of mining company North Ltd in Melbourne: the first beginning on September 1, 1998 and the second on March 28, 1999;
- anti-NATO rallies in Melbourne, Sydney and Canberra, especially in Melbourne on 28 March, 1999 and in Sydney on 12 April, 1999;
- the cancellation of a speech by the Minister for Workplace Relations, Mr Peter Reith, on 21 July, 1999 after 150 unionists invaded the Leon Cussen Institute in Melbourne, forcing police to close off a section of Bourke Street.
Events Since the 1998 Waterfront Conflict
Hanson in Hawthorn
'On speaking to the organisers outside the hall they have given us an undertaking that if the meeting does not proceed they will let us take all your people out.'
This was a police statement read to approximately 250 Australians who had lawfully attended a public meeting Pauline Hanson was supposed to attend on 19 July 1998. Around 1,500 militant protesters had surrounded the building in Hawthorn to prevent anyone entering the building, with some citizens being assaulted as they attempted to penetrate the picket line of tolerant multiculturalists. Elderly people already inside the building began fearing for their lives. While it is difficult to prove police collusion, police ineptitude is glaring. Even on the most generous reading, the police's duty during this violent demonstration was to ensure the people entering the hall freedom of assembly and to ensure they could enter the building without violent harassment. Instead, the mob surrounding the building actually instructed the police on whether those leaving the building would be harmed! The police simply acted as intermediaries, passing on protesters' directives to the citizens inside the hall. It is indicative of the failure of Victoria's police to learn the lessons of the Melbourne Waterfront debacle that months later, well-orchestrated crowds still dictate terms not only to Australians exercising their democratic rights, but to the very officers meant to protect those rights!
It was a similar incident to an earlier One Nation meeting in Dandenong, in July 1997. Resistance, the Democratic Socialists and Militant and the International Socialist Organisation were all alleged to have been involved in orchestrating an ugly mob who pelted those attending with eggs and bags of urine, and attacked ordinary people who entered and left the meeting. Whether the One Nation party and its leaders are unsophisticated, whether their political ideology is bankrupt, is surely irrelevant. It remains a basic civic principle in our democratic society that people---all people---are entitled to congregate and speak freely if they do so peacefully. As Robyn Spencer, Victoria's One Nation co-ordinator, observed: 'How dare the police negotiate with the multicultural thugs outside who were preventing freedom of speech. Our police are negotiating with them rather than the citizens inside who have right of association and the right of freedom of speech.' Furthermore, the crowd surrounding the building was not a spontaneous and angry group of citizens independently turning up to protest. It was a highly-organised mob, orchestrated by extremist groups Militant and Socialist Alternative. Disturbingly, it was the same group of elite activists who dictated terms to the police.
Just as workers are lawfully entitled to enter their work premises without violent harassment, interference or intimidation, citizens are entitled to attend a public meeting or congregate freely without having to combat interference or intimidation. On both principles, one put to the test in April/May 1998, and the other in July 1998, the police failed to enforce them.
Two demonstrations were conducted outside the headquarters of mining company North Ltd in Melbourne, the first in September 1998 and the second in March 1999. The first demonstration featured minimal police intervention, despite property damage and illegal blockades. The second featured police intervention only after a delay. The first incident involved the despoilation of the building and illegal disruptive behaviour and blockading around the site. The second incident witnessed further absurdities, before the belated police intervention. Both episodes highlight the continuation of police ineptitude after the incidents on the Melbourne waterfront.
On September 7 1998, Victorians were confronted with a Herald-Sun picture of a company building covered with graffiti, paint and assorted muck. It was the building of the uranium mining company, North Limited, whose headquarters were subjected to several blockades between 1998-99. The mining company North Limited, is abhorrent to the extremist left. Accordingly, trespassers enraged by its activities at the Jabiluka site subjected the company to unlawful violence. Its headquarters in St Kilda Road was vandalised. Employees were denied access from their offices by a blockade of around 400 people, many of whom were mobilised by the Jabiluka Action Group. Environmentally-friendly greenies decorated the building with red-enamel paint. The total damage estimated was $10,000. The company closed the workplace and temporarily worked elsewhere, thus inconveniencing the employees and damaging small businesses within the building. Noise pollution ensued outside the North building---local residents were dismayed when police said there as little they could do to prevent a band playing most of the night, an illegal concert that lasted until 4am. Astonishingly, the police passively watched the proceedings. They either forgot their responsibilities or did not know them in the first place. Strangely, a police spokeswoman said 'the protesters did not cause any problems and that no arrests were made.'(5) One wonders what kind of conduct would amount to 'causing problems,' and what police believe they are supposed to be doing during a blockade.
In the second protest, anti-uranium demonstrators stopped residents and demanded to see their drivers' licenses before letting them proceed in nearby streets. The police did nothing. The Age editorial claimed such conduct was 'more reminiscent of right-wing dictators than left-wing supporters of indigenous rights and environmental protection.'(6) After the conduct of left-wing protesters at the Melbourne docks and at the Hawthorn One Nation meeting, such conduct is becoming typical of the bossy leftist elites. Citizens in a democracy were actually asked to show identification to prove they were not employees of North Limited. Again, the police did nothing. Other businesses, and indeed the wider community, were also harmed. Residents were denied entry into their homes, a disgrace initially allowed by the police. An officer worker, Malcolm Holt, complained that 'People were opening my car doors and threatening me but the police would do nothing to help.'(7) The paradox of vandalism, intimidation and harassment on the part of the pacifist, environmentalist left was not lost on North Ltd's Managing director, Mr Malcolm Broomhead. He said, 'In a democracy people have the right to peaceful protest. But people who use intimidation and bullying are unAustralian and I have to say there has been a fair bit of intimidation and bullying from people who vandalise and destroy things yet call themselves environmentalists.'(8) Defending the police's approach, chief Superintendent Carl Hagan claimed ' ... Our plan worked. We've been able to get the employees in without any confrontation or violence of any kind.'(9) It is interesting that the police regard the avoidance of confrontation as their priority. The same perverse objective is endorsed in the Chief Commissioner's Instruction 13/8 (Policing at Crowd Control Situations) that 'the success of any operation will be primarily judged by the extent to which the use of force is avoided or minimised.'(10) Given that their duty in this situation is to enforce the law, some kind of confrontation is inherent and inevitable. If militant lawbreakers are prepared to confront citizens with violence and intimidation without negotiation, they too should be confronted, without negotiation.
While the police did eventually intervene with some force, holding back protesters and using mounted police to break up a group, this happened after a significant delay---enough time to damage the business of cafes.(11) A café owner based in the foyer of North House, Nick Alexandropoulos, made significant losses. Business at a nearby snack bar in Queen's Lane was also severely harmed.(12) Mrs Cove, the business owner, said 'The police have done nothing to protect our interest. We're not mining uranium. We're just making sandwiches.' Their business, they said, was 'down 98 per cent. Our living has been wiped out.'(13) The police's tolerance of these activities even earned the censure of the Victorian Premier, who had defended the Police's non-confrontational stance during the waterfront dispute.(14) Premier Kennett criticised police reluctance to prevent protesters demanding identification from motorists.(15) Does it really require the intervention of the Premier to conclude that the demanding of identification from drivers by protesters is unacceptable? Should it really require the criticism of a powerful and popular state Premier and the criticism of talkback radio host Neil Mitchell to motivate police intervention? It is surely not a coincidence that the police only resorted to force under the pressure of political leadership and popular media. More astonishing still is the failure of police to charge anyone for this illegal and reprehensible conduct, or for the DPP to prosecute. Neither the violence, nor the public nuisance, the illegal blockading nor picketing as far as I can ascertain have led to charges. When certain groups---leftist activists, environmentalists, multiculturalists---are permitted to vandalise and terrorise Australian citizens, the police have clearly failed in their duty. When the same groups are not even prosecuted, we are effectively licensing mob rule, endorsing de facto martial law.
The power of precedent is not to be underestimated. Police failure to secure safe passage for cargo during waterfront picketing sends a clear message to protesters that violence will be tolerated, that organised harassment and intimidation will close down a meeting---or a workplace. It is only a situation that can be reversed when the police realise that their primary purpose is not mediation or liaison, but enforcement.
The police also failed to restrain Balkan violence in Australian cities. NATO's bombing raids on Serbia provoked violent demonstrations in Australia by Serbian supporters. In St Kilda Rd, which also witnessed the shambolic display of environmentalists against North Ltd, eggs, fruit, bricks, heavy bolts and even flares were hurled at the US consulate. Protesters against bombing had no qualms about illegally bombarding a building. Confronted with two hours bombardment of them and the building by Serbian sympathisers hurling rocks, eggs, bottles and a petrol bomb, the newspapers reported that 'more than 130 police showed restraint.'(16) Such 'restraint' was irresponsible. With no arrests being reported, the actions were effectively condoned by the police. The violence was not condoned by Serbian community and church leaders,(17) but nevertheless threatened property and lives. In Sydney, outside the MLC building housing the US Consulate General, police were bombarded with eggs, tomatoes, explosives and small pieces of concrete. Protesters smashed shop windows and hurled chunks of concrete at police, and firecrackers were set off. Before the arrival of reinforcements from the Federal Government's Australian Protective Services, the situation threatened to escalate out of control. Similar eruptions occurred in Perth and Canberra. Only after constant bombardment of police and the building did police finally move in to disperse the crowd.
The dangers of damage to our international reputation were also highlighted. Because of police failure to control protests by Serb sympathizers in both Victoria and NSW, US authorities decided not to dock the USS Princeton in Melbourne after the assaults on the consulate. Reflecting a dangerously tolerant mentality, the police actually praised the authorities for their prudent awareness of the large and volatile Serb community, rather than questioning their failure to secure an environment where the world's dominant western power would feel it could safely dock a vessel.
Peter Reith and the Leon Cussen incident
Workplace Relations Minister Peter Reith was forced to cancel a speech to the Leon Cussen Institute on 21 July, 1999 after 150 unionists invaded the Leon Cussen Institute in Melbourne, forcing police to close off a section of Bourke Street. It is a continuation of the pattern of highly-organised unionists being able to mobilise more quickly and effectively than the police, and shut down a legal event. It is a situation tantamount to martial law. Ironically, the Minister was due to give a speech about mediation---before the failure of the police's preference for mediation and conciliation became manifest. Police actually called the Minister and warned him to show up 'at his own risk.' If there is a lesson to be derived from this sad little incident, it is that thugs rallying to shut down an event should have forfeited the opportunity for mediation.
The problems manifested in the 1998 maritime dispute are clearly continuing. They continued when police told citizens lawfully assembling in Hawthorn that 'On speaking to the organisers outside the hall they have given us an undertaking that if the meeting does not proceed they will let us take all your people out.' They continued when Bob Moore, the Chairman of the body corporate of the Kingstoun apartments across from North Limited, was told by police that they had been 'told not to' arrest anyone involved in an illegal rock concert at 2 am outside North Ltd Headquarters.(18) They continued when Minister for Workplace Relations Peter Reith cancelled a speech and police blocked off Bourke Street when unionists shut down a meeting at the Leon Cussen Institute. They continued when police 'showed restraint' while anti-nato demonstrators bombarded the US consulate. They continued when police failed to shift an illegal blockade at a Geelong refinery. Police inaction against the illegal activities on the wharves has perpetuated the same behaviour in a series of political and industrial demonstrations.
Reasons for Police Failure and Recommendations for Reform
Sometimes it is difficult to pinpoint causes. It is impossible to ascertain precisely the impulses underpinning these police failings. Historical causation itself was eloquently doubted by A.J.P. Taylor:
- It is the fashion nowadays to seek profound causes for great events. But perhaps the war that broke out in 1914 had no profound causes ... In July 1914, things went wrong. The only safe explanation is that things happen because they happen.(19)
Things certainly 'went wrong' and are still going wrong at the sites of industrial and political confrontation in this country. However, the following causes have contributed to this crisis in police handling of violent demonstrations:
- police resources and structure
- police training
- political and police leadership
- police public relations concerns
- police legal concerns
Police Resources and Structure
Lack of adequate resources is allegedly one contributing factor to the failure of police to discharge their obligations. For some months after these incidents, it appeared that the problem had been addressed. The Labor Party campaigned for increased police resources. The government agreed to add another 400 police, suggesting an improvement in capacity to handle industrial blockades, and an awareness of the problem. However, the campaign by the Labor Party and the Victorian Police Association to increase police numbers obscures some disturbing facts: Victoria already has more police per 100,000 population than NSW, combined with relatively low crime rate. If the resource question is an operating factor (and it is minor at best), manpower per se does not seem so much the issue as its deployment and organisation.
The force currently lacks a functional group dealing with large-scale industrial disputes and other civil disturbances that can be quickly deployed, without diverting police from other civil duties, as occurred during the fiasco outside North Ltd. Disturbingly, trade unions and associated dissident groups can mobilise hundreds or thousands of protesters more quickly than the police can organise appropriate reinforcements to uphold the law. Leigh Hubbard of the Trades Hall Council reportedly has established a 'telephone tree' to enable 'up to 10,000 protesters including the building and manufacturing industries[to] man the gates' at demonstrations or pickets.'(20) Get numbers at the ball, act violently and the police will cave in. The anti-NATO demonstration in Sydney, for example, highlighted the problems of resource-deployment. Having underestimated the size of the demonstrations, police were forced to drag reinforcements from an anti-Jabiluka demonstration, from highway traffic duty, and even required the assistance of non-police units in private security. Similarly, during the protests outside North limited, police assigned to other duties were summoned to assist. It is time to consider the introduction of specially trained, rapid-response Industrial Disputes Units in every State, capable of efficiently and above all correctly enforcing the law, prosecuting offenders and protecting the rights of citizens to go about their lives and business. Such a force existed in Victoria, as recently as the 1980s. Given the increasing specialisation in policing (gambling squads, drug squads, homicide squads), it makes sense to train a special squad to deal with political and industrial blockades. As we have seen all too clearly in the last 15 months, the alternative is a powerless police force whose inaction, lack of will and poverty of resources will help the rule of the mob supplant the Rule of Law.
However, addressing the resource question does not resolve fundamental attitudinal and legal problems which are really at the heart of the crisis: police are either unaware of their responsibilities or unwilling to exercise them, or are aware but feel constrained by the threat of litigation.
Victorian police currently have betrayed an ignorance about their duties in relation to violent demonstrations, picketing and illegal mob behaviour. It is a failure to recognise the legitimacy of proportional force, force necessary to restrain illegal behaviour and enable citizens to enter their workplaces or congregate peacefully, which must be corrected. Even the higher echelons of the police hierarchy are implicated in this fundamental misunderstanding of their responsibility. The police hierarchy has clearly stated that it regards the minimisation of confrontation and force as its highest priority during industrial disputes, strikes or pickets. It has mistaken its central duty---'keeping the peace'---for 'keeping things peaceful', rather than enforcing law and order. For example, the Chief Commissioner's Instruction 13/8 (Policing at Crowd Control Situations) that 'the success of any operation will be primarily judged by the extent to which the use of force is avoided or minimised.' When senior police evince such an abject misunderstanding of their role, it is hardly surprising that ordinary police fail to intervene forcefully when faced with violent mob behaviour.
The police misunderstanding of the duty to 'keep the peace' reflects a deficiency in the current law. Rather than discouraging force on principle, proportional force should be recognised as a legitimate means of protecting the rights of individuals. It may be that legislative reform is needed that clearly enshrines the use of proportional force in law. Basic education is also needed regarding the appropriate role of police as law enforcers, not as liaison officers subject to instructions from violent crowds. It is clearly a process required from the top of the force down.
Political and police leadership
The transformation of the relationship between the police and political leadership also explains police timidity. Whereas the Victorian government earlier this decade increased police powers (i.e. changes to sentencing laws and to accountability), Premier Jeff Kennett endorsed police restraint during the maritime conflict, refusing to support the use of police as a 'battering ram' for Corrigan's nefarious purposes. The stance of the Victorian Government, approving the police's new non-confrontationist policy, has only reinforced the police's basic misunderstanding of their role. Kennett's insistence that he opposed Victorian's using violence against other Victorians at the wharves amounted to a dangerous authorisation of police passivity. The Police Association's vote of no confidence in the Victorian Police's executive command in part reflected grievances arising from the new requirement that police on the ground use 'minimal force' in handling crowds and protests. In some instances police who have made arrests have subsequently lost command support and been threatened or subject to civil litigation. Recurrent police passivity at violent demonstrations is thus both a cause and a result of a confidence crisis within the force.
If change to this ineffectual and irresponsible policy of restraint is to be effected, it will require a change of attitude from the top of government down to police ranks. While police conduct should not be determined by encouragement or discouragement from Victoria's Premier, the traditional role of the police will be fortified if political leaders recognise the legitimacy of proportional force and the role of the police as law enforcers rather than passive onlookers. The appointment of a new Police Minister could potentially accelerate the resolution of this issue. Otherwise, sanctioning police passivity in the face of violent protest will merely make the Government vulnerable to criticism and even civil litigation from the new victims---such as employees, employers, or anyone else exposed to the mercy of unrestrained mobs.
Police public relations concerns
How else can we explain the police's tentative responses to violent public incidents? In the recent past, when confronting situations with force, police have been subject not only to vilification. Australia is increasingly replicating the litigiousness of America. Previous civil action and large payouts from police budgets, as well as official inquiries, must be powerful deterrents when faced with yet another violent crowd. Senior police officers have despaired that the financial threat to police budgets from civil damages claims lodged after confrontational incidents means that minimal force is now imperative. This must reflect a deficiency in the current law: rather than discouraging force as a principle, proportional force should be recognised as a legitimate means of protecting the rights of individuals.
Much of the Victorian Police's apparent neurosis surrounding the use of force can be explained by the criticism which followed police intervention at the Tasty nightclub and the Richmond Secondary College, two incidents which ruptured the formerly close relationship of the Victorian government and the police. In a particularly controversial period, police broke up a demonstration outside the Richmond Secondary College with a baton charge. The alleged militarisation of the police force was also supposedly highlighted when 436 patrons at the gay nightclub Tasty were stripsearched. The County Court ordered compensation after it found that the police had acted beyond the power of their warrant. In a report entitled Victorians Under Siege: The Case For An Inquiry Into the Victoria Police, the Federation of Community Legal Centres blamed in particular the small Special Operations Group for undermining the distinctions between police and soldiers. The perception that the Victorian Police were excessively violent was compounded by the high number of police shootings and resulting deaths. Probably as a consequence of such criticisms, the emphasis within the force is now entirely on maintaining the distinction at all costs, minimising force regardless of the threat to the victims of illegal mob violence.
As for the objectivity question, the police's affiliation with the Trades Hall Council is not encouraging. The joint protocol of the Victorian Police and the Union movement, stipulating the respective responsibilities of police and trades unionists, is not a basis for proper impartiality. Legally protected civilian rights---to access workplaces, to engage in lawful trade, to assembly and to enjoy free speech---should not be bargaining counters. Sometimes force is required, even against the police's protocol partners. Nor do police have a role in making arrangements with union officials to alert them of impending action, thus allowing the infamous telephone tree to round up the usual Trades Hall suspects. Their impartiality is also impugned when one considers that non-political disturbance of the nature seen outside North headquarters would certainly not be tolerated. Vandalising property, preventing access, loud rock concerts, starting fires or harassing people for identification would all attract arrests and charges. Why is it that the same behaviour is condoned when conducted in the name of environmental protection? Why is it that police consistently privilege aggressive protest groups above large or small businesses, employees or people lawfully attending a public meeting? Complaints even came from within the force---one officer asked whether there is one law for protesters and another for ordinary citizens.(21)
The police should realise that congenial public relations should not be the first priority when handling divisive incidents. There is an inherent unpopularity in using proportional force to clear a picket, to allow passage to cargo, or to restrain aggressors, particularly when disputes become entrenched. That unpopularity, however, is no excuse for inertia. The enforcement of order is a higher duty than harmonious public relations. Additionally, to ensure an impartial force that will not collude or condone mob violence, it will be necessary for the police to disaffiliate itself with the Trades Hall Council. Only an independent police force, unaligned with trade unions and their assorted extremist allies, can be trusted to apply force where it is appropriate.
Police legal concerns
Police using force against violent crowds have also been subject to litigation. Such policies are a response to a new vulnerability. Stephen Jolly, the national secretary of Militant, an organisation that was instrumental in co-ordinating protests at Richmond Secondary College and the Hawthorn protest against Hanson, boasted in July about the relationship of his extremist group with the police. 'They know we are like a rottweiler around their ankles, as they saw at Richmond,' he said. 'It's not over yet. Next April we are suing them in court---civil action. We have a lot of top lawyers who will work for us for nothing.' Police inaction is thus not surprising. It is ironic that Jolly regards the police as defenders of the capitalist status quo, and that he implicates them in a 'sinister plot against democracy.' The allegation that police have failed to protect democratic liberties has been justified---on the wharves, at the One Nation meeting, outside North Headquarters, at Reith's cancelled speech, at the Serbian rally and lately at the Geelong Refinery. However, it was precisely the victims of extremist protester groups who were unprotected, not the violent mob that threatened them. As Des Moore observes, police officers have also claimed that
- those hurt when force is used are able to recover damages by taking civil action even when their actions constituted a criminal offence. Indeed, it seems Victoria Police now even conceded assault claims up to $5,000 rather than go to court. Little wonder that Jabiluka protesters videoed even the minimal use of force by police in the North blockade.(22)
It is only when legitimate police force is properly supported by the judiciary and the legislature that the necessary police confidence will return. Additionally, to ensure that the issue is properly addressed beyond a manpower analysis, a thorough public inquiry should be instituted into the relevant court decisions, police powers, training and performance at violent demonstrations. If resources need to be redeployed or restructured, if procedures need to be reviewed, if the current inadequate police policies and mentalities need to be addressed, only a systematic inquiry can adequately resolve what is an ongoing erosion of democratic liberties and individual rights.
Summary of Recommendations
- The introduction of specially trained, rapid-response Industrial Disputes Units in every state, capable of efficiently and correctly enforcing the law, prosecuting offenders and protecting the rights of citizens to go about their business---above all without delay;
- Education about the appropriate role of the police, not as poll-driven PR pacifists but as officers entitled to employ legitimate force in the face of illegal violence;
- Legislative reform that clearly enshrines the use of proportional force in law;
- A political leadership that recognises the legitimacy of proportional force, rather than approving, as the Victorian Government has, the police's non-confrontational policy;
- Disaffiliation of the Police Association from Trades Hall Council;
- An official inquiry into and comprehensive review of police resources, procedures, training and policies;
Police anxieties about forceful intervention can also be explained in the context of their vilification and misrepresentation by extremist groups. Organisations such as International Socialist, Resistance, Militant or even Action Against Racism commonly claim that they do not condone violence or intimidation. However, demonstrations in which they have a central co-ordinating role invariably erupt into profoundly anti-democratic and violent behaviour. The organisations may not explicitly promote violence---but neither do they discourage it. The behaviour is silently endorsed because of their misguided view of the police (as witting instruments of oppressive forces) and of people with certain views (such as One Nation supporters who have less entitlement to express those views). Any criticism of their complicity in crowd violence is simply rejected as a distraction from the 'real issues' and causes they stand for. It is a bitter irony that the people demanding an apology from others for certain policies are never willing even to express regret at their own involvement in mob aggression. And in stark contrast to the palpably irresponsible passivity displayed at the incidents described above, leftist organisations still maintain that police are anti-democratic, anti-leftist vigilante groups! Militant's cyberspace manifesto, for example, includes demands for the following police reforms.
- Disband elite military police units;
- End police violence and harassment;
- No police presence at rallies, demonstrations, picket lines and occupations. Trade unions and community groups to organise progressive crowd control and protection---in conjunction with police---on demonstrations and strikes.
The International Socialist Organisation also views the police as an inherently repressive and antagonistic instrument, an integral part of the capitalist structure intended to protect the ruling class against workers. That assertion is laughable in the Victorian context---during the wharf dispute images of police playing cricket with picketers, sharing a barbeque and even helping deliver supplies to picketers are testament to the total breakdown in the traditional role of police. Their tacit endorsement of crowd violence, and their desire to prosecute the police, does much to explain police reticence in crowd control circumstances.
However, the Victorian disease---of such groups giving instructions to police---must be reversed. Steps must be taken to restore and protect the role of police as law-enforcers, not public relations officers. While remaining legally accountable for excessive force, the law and state leaders should recognise that situations involving illegal picketing, harassment and violence should be met with whatever force is necessary. Only a proactive police force can prevent the encroachments of ugly mobs on basic civilian rights---to work, to engage in lawful commerce, to express an opinion, to participate in our free society. Without enforcement of such rights, the rights themselves will become meaningless.
2. See speech, Christopher Corrigan to the Australian Institute of Company Directors, Tuesday March 16, 1999. The Commendations read 'For conspicuous service ... during a volatile and emotive industrial dispute on the waterfront'p.6. See also M. Bachelard, 'Corrigan slams police wharf role', The Australian, 17 March 1999, p.3.
3. Affidavit of Simon Patrick De Souza, Shell Refining (Australia) Pty Ltd v Australian Workers Union & Ors pp. 9-10.
4. Ibid, p.13.
5. 'FYI-AAP News Item: Criminal Damage to North building'
6. The Age 31 March 1999, 18.
7. I. Gilchrist, 'Police break up blockade' Herald Sun Tuesday 30 March, 1999, 5.
8. L. Johnson, 'Police defend tough tactics at protest' The Age Wed 31 March, 1999, 3.
9. AAP Monday, March 29 1999, VIC: 'North Ltd beats blockade but confrontation looms'
10. D. Moore, 'Crowds run riot as police find the force is not with them' The Australian Friday May 7, 1999, 13.
11. The police intervened on Tuesday 30 March when the protest began on Monday 29 March.
12. I. Gilchrist, 'Police break up Blockade' The Age Tues 30 March, 1999.
14. 'FYI-AAP News item: Kennett anger at protesters' 30-03-99.
15. Premier Kennett stated: 'The thought of protesters being able to secure from residents their identification, drivers' licences, is just obscene and that does concern me very much indeed.' (cited in Lyall Johnson, 'Police defend tough tactics at protest' The Age Wednesday 31 March, 1999, 43.
16. R. Titelius, 'More Rallies at Consulate' Herald-Sun 29-03-99, p.5.
17. A. Cummins, 'Vow on protest violence' Herald-Sun 04-019-99, p.13.
18. A. Bolt, 'Law looks other way' Herald Sun 28 February 1999, 19.
19. A.J.P. Taylor, quoted by Paul Kennedy, 'Profound Forces in History' in C.J.Wrigley (ed.) Warfare, Diplomacy and Politics: Essays in Honour of A.J.P. Taylor (London, 1986).
20. 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.
21. D. Moore, 'Crowds run riot as police find the force is not with them' The Australian Friday May 7, 1999, 13.