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Further Developments in the Case of the Mount Thorley Twenty Five

Terry Tobin, QC

Mount Thorley is a mine in the Hunter Valley outside Newcastle. The Hunter Valley is a time capsule in some ways of Australia pre-World War II, and I suspect in some aspects pre-World War I. The mentality of the Hunter Valley takes us back into capital/union and more particularly mine manager/miner disputes of the Welsh valleys or other historic coal regions. I emphasise that at the outset, because the culture from which this dispute arises is difficult to grasp for someone born south of the Murray and unfamiliar with that historic time-capsule and the mindset of the people involved. The ABC promoted it in that infamous series called 'The True Believers' which attempted to depict pipe-smoking, beer-drinking, social reformers on the side of the angels, cigar-smoking, whisky-quaffing, dinner-suited gentry on the side of the devils. This of course is a form of crude characterisation which has beset not only Australian political life but Australian industrial relations for decades.

However it is into such a crudely characterised cultural setting that one goes in visiting the Maitland area, close to the battlefield of the Mount Thorley mine dispute. Mount Thorley is simply a coal mine, and in 1984 they introduced a loader to the coal mine which greatly increased work productivity. It had only one seat in it---one might assume that it was designed as a one man operation.

The FEDFA, a minority union in terms of the workers on the site, insisted that while it may only have one seat, it needed two drivers, which does offer tantalising visions to the mind as to how they would precisely man this instrument. However, two men they insisted on, and as a result there was a great dispute and the 73 FEDFA members were sacked in May 1985. An advertisement was placed in the Newcastle Morning Herald, for 25 replacement plant operators. There were hundreds of applications. This tactic of allowing people into the mine by direct application to the management was endorsed by the majority unions on the site. It was not endorsed by the FEDFA. It was opposed bitterly. However, after the employment of these 25 men in May, the FEDFA settled with management in June and their 73 men came back on the site. The understanding was that the Mount Thorley 25 would be kept on, with the assurances of the FEDFA union management that they would be in no way interfered with. These assurances proved to be worthless, and the 25 employees were subjected to a campaign of hatred and vilification, which has gone on ever since. Naturally enough many of them have given up the job. There are a few survivors, some of whom have taken common law proceedings for damages for conspiracy to injure them in their employment. That is a subject which has been dealt with elsewhere.

I would like to offer a subtitle to the paper, Mount Thorley---More Laws, Less Liberty? What happened in Mount Thorley over the past 6 years is testimony obviously to some weaknesses in the legal system. Of course it is also testimony to weaknesses in human nature, in management of the mine, in union procedures, weaknesses perhaps more potent and more damaging than in the law but nevertheless pointing to weaknesses in the law; because in our law-ridden and law-driven community it is to the legal processes which those engaged in industrial relations almost inevitably look when they seek a resolution of disputes. What is to be said then of that legal context in which part of the Mount Thorley problem arises? Put simply, whatever the Local Coal Authority was promised, whatever hope it expressed as to the well-being of the Mount Thorley 25 and whatever assurances were offered by the union that they would not be interfered with, anyone with eyes would have known that they were at risk. With a change of ownership and management, they were soon confronted with an industrial environment in which they were deprived of non-legal support, in the form of support from their employers (support which by the way reflected the support of majority union membership and leadership on the site). They were deprived of that by the exigencies of mine economics.

They also found that they were deprived of what they had a right to expect: the ordinary protection by the police of citizens engaged in lawful activities who do not wish to be the subject of harassment. Put another way, there is in the community of Australia at large, and in a cultural environment like the Hunter Valley in particular, unwritten, no-go areas where the writ of government appears not to run.

Technically, the writ continues to run but it is not worth the paper on which it is written, if it cannot ensure the protection to a worker who is the beneficiary of the particular industrial determination. How do you build into the legal system practical protection for the individual? How do you ensure that daily conduct at the coal mine reflects not just a pious hope of the Local Coal Authority but something which has substance in the day-to-day life of workers who are threatened by unlawful and intrusive practices by some of their co-workers.

This question raises a much broader topic for debate: the proposition that all the rights of all members of the community should somehow be enshrined in statute. Recently, constitutional lawyers have decided that during this decade we might turn our minds to refurbishing the Constitution and to attaching to it a Bill of Rights. The notion of attaching a Bill of Rights to the Constitution is to enshrine as a paramount law those rights which we cherish: the freedom of speech, the freedom of assembly, the freedom of religion, the freedom to strike. Sir Maurice Byers was the Solicitor-General for the Commonwealth, and had a distinguished career stretching through the Whitlam years and beyond. He recently scratched his head metaphorically in the course of an article, asking why a group of bishops (of all people) should oppose enshrining freedom of religion in a Bill of Rights. The reason of course is fear. What are the guarantees offered by a Bill of Rights enshrining freedom of religion, freedom of assembly, etc as a paramount law? What are the fears of the guarantors and the guaranteed? The fears are worth exploring because they lie behind what is a dilemma, or a paradox, in the thesis which I wish to present.

On one side you have a body of opinion in this country which favours enshrining rights in a Bill of Rights, to proclaim and thus protect the rights of all individuals in the community. Against that tradition, there is an older and more sustained tradition of the common law. The tradition of the common law is quite different and quite simple. It is to the effect that what is not prohibited, is permitted. Around each individual there is an oasis of independence and liberty. It is his own, it does not have to be given by the state, he has it as of right. The inroads into that oasis are those inroads permitted by parliament, inroads legislated on behalf of society by its representatives, inroads which on each occasion must be justified and fought over and debated. These inroads are exceptions, contrary arguments, deviations from the norm. The enshrining of the rights of the citizen within his or her oasis of independence and liberty is not to be made by the state; the rights are not to be conferred by the state upon him; the state of its nature accepts those rights, and intrudes apologetically if it must, no doubt clumsily as it inevitably will, but nevertheless intrudes only with legislative permission.

Now this is a model of society, a model of the state, which is almost unique to British legal and political institutions. It is worth thinking about, and fighting over because the alternative model---which sees a Bill of Rights as the central way in which rights are to be safeguarded---by the very attempt to define liberties must limit them. That is the paradox in the Bill of Rights argument: the attempt to define precisely the area of a man's rights carries with it the notion that beyond that area he has no rights. This is not the model of an oasis of independence and liberty. It is an absolutist model from the European political and philosophic tradition, and it is a foreign model to our community. Nevertheless there are inland seas on this continent where this model sails, and industrial relations is one of them.

How would the adjudicators of our present industrial relations system be likely to accommodate the right to work, the right to strike and the right of freedom of association under a Bill of Rights? If one looks at the prevailing legal philosophy that guides much of what they do, it militates against decisions which are tailored to protect the rights of individuals rather than the interests of institutions. You would appreciate that in England last century, Jeremy Bentham had a very potent influence on legal reform. In fact, I think he wanted to reform the whole of the criminal law and write it out in longhand. He was fortunately prevented by circumstances from doing so, but he remained a very potent influence. His general philosophy is consequentialism, more commonly known to lawyers as utilitarianism. It means simply that if .I have to adjudicate some contest in society, I am entitled to approach the question of what is a just result by asking: What will bring about the greatest benefit for the greatest number?

In the industrial arena where the just result is often calculated in accord with that philosophy, the rights of the individual are going to be very much at the mercy of great and powerful interests. The resolution of disputes by judges is accepted by the public, not because they are decisions of judges but because it is assumed judges will produce a just result. The potency of the lawyers who administer the industrial relations system in this country comes not from judicial status. It actually comes from community acceptance that judges dispense justice. But that justice is often measured against utilitarian standards in which the interests of the process will often prevail against what would be a just result for any one individual, and may prevail despite injustice to the individual.

The coalition between these two forces that I have identified is I think very important: the notion that the rights of the individual are to be defined by statute, and the application of utilitarian principles to the effect that as long as the greatest good for the greatest number is achieved the result is just. That combination is a powerful operational tool which may in the end limit the liberty and happiness of citizens in such a society. It will be clear from what I have said that a Bill of Rights would not in my view provide the protection to individuals which its supporters proclaim. What is ultimately required is the community will to protect the rights which we now enjoy and to ensure that there are no de facto areas where the law's writ is not enforced to protect those whose rights are threatened. Let me illustrate with a practical example how such protection may be extended without recourse to a constitutional law.

The NSW Crimes Act in recent years has provided for an 'apprehended violence order' which is not limited to domestic/family cases but extends protection to every member of the community. It gives the person under threat of violence a remedy in that he may go to a magistrate and obtain an order protecting him from harassment. The magistrate, after a hearing, may make a permanent order restraining the defendant from in any way harassing the complainant. It has been used recently in NSW by a furrier who was being picketed by animal liberationists protesting about the sale of furs. The magistrate granted an order against the picketing which was damaging the furrier in the conduct of his business. It has been used of course in the context of family disputes. It has now been used in the context of harassment at the Mount Thorley mine.

In February of this year the Magistrate in Maitland, applying the statute, gave Mr Jeff Hanlon an order to the following effect against one of the FEDFA members: For three years the defendan't was prohibited from 'assaulting, molesting, harassing, threatening or in any way seeking to intimidate Mr Hanlon, from calling him or referring to him as a scab, aiding, abetting, counselling or procuring any person to commit any of the above acts, approaching or in any way making contact with Mr Hanlon, other than when each is involved in the performance of individual duties at their common work site, approaching, loitering there, entering or remaining upon premises occupied by Mr Hanlon, his wife and children or in any way making contact with Mr Hanlon's wife or children.' The defendant was also ordered to pay $8,000 costs.

As I said at the outset, the law is not the only, and is not necessarily the ideal, remedy in getting to grips with the industrial culture in this society. But it is a necessary back-stop, and without it one should fear that cultural or political changes to work-place attitudes would count for little.

The experience of the NSW legislation against apprehended violence is based on very old common law roots and more recent family law developments. The energies and emphasis of lawyers and policy-makers should be directed to the area of remedies, rather than the definition of rights, that is to the effective, practical remedies that individuals in the position of a Mr Hanlon can employ when their rights are invaded. For there is no doubt about what his rights are, but rather whether the machinery exists which will protect those rights.

The rights we have are well known, are powerfully enshrined in our law and in our community consciousness. Deprived of support from employers, arbitrators, registrars or policemen, the only recourse a person in Mr Hanlon's position has is the laws which do not proclaim his rights but give him practical remedy when he leaves home to go to work, leaves his wife and child at home, knowing that he can get an order from a magistrate cheaply and quickly to protect his family and when he gets to work to protect himself in dealings with his antagonists.

In my view, this provides a better model for our society than the grander plans for universal statements in a Bill of Rights that may simply distract from the less glamorous task of giving substance to the rights which we now enjoy.