The Untold Story: The ACCC’s role in the Waterfront Dispute - Part 10 - Rule of law...going, going gone

Part 10 – Rule of law…going, going, gone

ACTU defiant

Towards the end of April 1998, Judge Barry Beach of the Victorian Supreme Court granted Patrick a range of injunctions preventing the continuation of the boycotts at its Melbourne container facilities.

There was little doubt when these injunctions were made that they were probably too broad to be enforceable. Effectively, Justice Beach ordered that no protestors were to come within 200 metres of East Swanson and Webb Docks. The injunctions applied to “anybody” protesting at Patrick’s facilities - they were not limited to either MUA members or even to an identifiable group of individuals. Furthermore, the protestors were not allowed to take photos of people behind the picket lines, which obviously caused considerable problems for the media.

There was a strong expectation that Justice Beach’s injunctions would be overturned on appeal. However, that would take time. It also became apparent to us that the MUA could not afford to call off the boycotts because that would have given the non-union workers an opportunity to get on the wharfs to show what they could do. Accordingly, the MUA simply decided to ignore the injunctions.

In a remarkably irresponsible act, the ACTU and its main spokesperson in relation to the Waterfront dispute, Mr Greg Combet announced publicly that the ACTU would also defy Justice Beach’s orders and continue with the boycotts in Melbourne. The ACTU encouraged its union membership to do the same and defy Justice Beach’s injunctions.

In a further act of industrial irresponsibility the ACTU publicly gave formal approval to national industrial action in support of the MUA.[1]

The ACTU and Combet did not seem to care that by blatantly ignoring the Court’s orders, and encouraging others to do the same, they were committing a clear and very serious contempt of court.

The actions of the ACTU and Combet marked a significant deterioration in the dispute. The ACCC had understood up until that time that the parties to the dispute would obey court orders. Even though most of the parties appeared to be ignoring almost every law which applied to them, such as the TPA, the Workplace Relations Act and the Corporations Law, we all believed that the parties would draw the line at ignoring court orders. However, the statements and actions of the MUA, the ACTU and Combet in relation to Justice Beach’s orders signalled to us that even court orders were going to be ignored by the parties if they did not like the consequences of complying with those orders.

I think it is fair to say that the rule of law had been well and truly abandoned by this stage in the dispute. Unfortunately, worse was to come!

ICFTU acts legally

One should compare the actions of the ACTU, in publicly stating that it was going to engage in contempt of court, to the actions of its international counterpart, the International Confederation of Free Trade Unions (ICFTU).

By way of background, the ICFTU is an international confederation of trade unions based in Belgium. At the time it represented 206 different local unions around the world, with approximately 125 million members.

The ICFTU announced in late April 1998 that it had written to the Prime Minister Mr Howard to advise him that it would be organising a range of union actions in support of the MUA.[2] However, in contrast to the actions of the ACTU, the ICFTU was not proposing to engage in, or seek to facilitate, illegal boycotts. Rather the ICFTU announced that it was proposing to engage in a series of entirely lawful actions to place pressure on the Howard Government and Patrick to try to facilitate a resolution of the dispute.

For example, the ICFTU announced that it was proposing to mount a legal challenge against the Australian Government through the International Labour Organisation for alleged breaches of the freedom of association laws. It also said that it would be contacting institutional investors in Patrick and its parent company Lang Corporation to try to get these institutional investors to put pressure on the companies to change their approach to dealing with the MUA.

At the time, I was very impressed at the way the ICFTU had decided to approach the issues. It had decided to focus its efforts on legal means of pressuring Patrick and the Howard Government to fix the dispute rather than to promote illegal conduct, including engaging in conduct which would constitute a contempt of court. It was unfortunate that both the MUA and ACTU did not decide to adopt a similar approach to the ICFTU. Indeed, the approaches which the ICFTU decided to take were clearly available to the ACTU.

Criticisms of ACCC

At this time, the ACCC was being criticised relentlessly by the then Labor opposition. Professor Fels was being criticised by a number of Labour politicians for even threatening to take legal action against the MUA. The main critics of Professor Fels were Kim Beasley, the then leader of the Opposition and Lindsay Tanner, who was at that time the Shadow Minister for Transport. The general line which the Labor Party took in its criticism of Professor Fels was that he was being partisan in threatening to pursue the MUA and not Patrick and other businesses involved in the Waterfront.

In actual fact, the Labor opposition was trying to pressure the ACCC into not intervening at all. Ironically, I am fairly confident that the Labor opposition would have been up in arms if they had obtained any evidence that the Howard Government had been trying to pressure the ACCC into intervening in the dispute against the MUA.

In early May 1998, Professor Fels decided to get on the front foot in explaining the ACCC’s approach to the dispute. In a lengthy article in The Age entitled “Watchdog and the Waterfront”, Professor Fels made the following comments:[3]

What is the role of the Australian Competition and Consumer Commission in the waterfront dispute? Is it taking sides? No. It is just doing the job the Federal Government gave it to do…

The Parliament made the commission responsible for upholding the law. It also decreed that the commission must act impartially, independently and without fear or favour.

The employers – Patrick, PCS and P&O and the Maritime Union of Australia have engaged in conduct which the commission is investigating for possible breaches of the act.

The commission is not taking sides. Its role is simply to ensure that no one breaks the law. If it turned a blind eye to breaches of the law (as some suggest would be appropriate in this case), its hard won credibility and integrity across the board would suffer.

The commission’s job is to ensure there are no breaches of the law by anyone – although, interestingly, it is nearly always portrayed by affected parties as taking sides when it intervenes in the public interest and this case has been no exception.

The commission has tried to be even-handed when applying the law.

It is investigating: the lease arrangements between Patrick and the National Farmers Federation owned by PCS Stevedoring at Webb Dock; possible anti-competitive arrangements which came to light in the OOCL litigation (an investigation that has accelerated now that Supreme Court documents are available); and allegations of (a) “no-poaching of customers” agreement during the dispute between Patrick and P&O.

These investigations have received less publicity than the labour-market investigations partly because the MUA (acting within its rights) has released most of the correspondence about itself, whereas the businesses involved have not.

On the labour market side, the commission has been investigating: alleged MUA collusion in international boycotts of Australian goods and services; alleged refusal by tugboat employees to cooperate in the berthing of ships at Patrick terminals; alleged MUA boycotts in relation to hold–cleaning practices; and the general picketing activities, insofar as they go beyond being peaceful (although there are already injunctions and other orders imposed by courts under other laws in relation to these). 

The commission has been concerned to play a difficult situation with a straight bat.

It is following standard and proper processes, despite allegations by the MUA of commission harassment. It is customary, when it learns of behaviour that would breach the Trade Practices Act, to warn participants in the hope of stopping the behaviour.

The MUA announced on television, radio and newspapers that efforts would be made to block the loading and unloading of ships at Patrick terminals. The commission sent the MUA a standard warning letter and telephoned the MUA secretary to tell him that the letter had been sent.

It is regrettable that the effect of the MUA comments is simply to discredit an independent agency doing its job properly.

Should the commission exercise its discretion to apply the law leniently because unions are involved? There are no signs the Parliament intended this. If anyone thinks the law is undesirable, they should get it changed by Parliament rather than expect the regulator to nullify it.

In any case when prospective breaches are announced with maximum publicity, the commission has little choice but to act….

In conclusion, difficult and emotional though the dispute may be, the commission is a public institution which can only maintain integrity and respect if it is seen to be fearlessly objective in pursuing its statutory responsibilities.
In that process, it is almost inevitable that parties whom the commission seeks to regulate will be aggrieved and angry. Unfortunately, for the commission, this is a fact of life it must face in fulfilling its functions.

Professor Fels made it quite clear that the ACCC would be doing its job properly and that we would not be influenced into taking action by either side in the dispute. We assessed all the complaints we received in the usual way, always being careful to maintain our independence. We never decided to pursue any complaint at the request of any external parties. Every investigation had to meet the ACCC's usual enforcement priorities before we decided to commence an investigation.

The reference in Professor Fels’ article to "the various parties who wanted the ACCC to turn a blind eye to breaches of the TPA" was a clear reference to both the ACTU and Labor opposition.

As stated by Professor Fels, the ACCC had decided to commence a number of business-side investigations because it wanted to be balanced in its approach during the Waterfront Dispute. By investigating both the unions and businesses, the ACCC hoped that nobody could accuse it of being partisan. Unfortunately, this was not what happened. All the ACCC achieved by commencing investigations into players on both sides to the dispute was to give them both the ammunition to argue that the ACCC was being partisan against them.

While I didn’t mind conducting these business-side investigations, it seemed to me to be a bit strange that our small team had to devote its meagre resources to investigating these less obvious alleged breaches of the TPA, at a time when the MUA was engaging in blatant breaches of the TPA and taunting the ACCC about its illegal conduct. I thought there would be plenty of time to go after anybody else in the industry that was breaching the TPA once we had commenced legal proceedings against the MUA.

I was also very frustrated that the ACCC was giving the MUA so many warnings - indeed, more warnings than they deserved. Contrary to what Professor Fels said in his article, it was not standard ACCC operating procedure to give a warning to a party which the ACCC believed was contravening the TPA. Rather, the ACCC would usually seek an explanation from the party about its conduct and ask the party to stop engaging in that conduct. If the business did not provide an adequate explanation and also did not agree to stop their conduct, the ACCC would generally be seeking to immediately commence legal proceedings against that party.

High Court victory for MUA

On 4 May 1998, the High Court handed down its decision in relation to Corrigan’s appeal against the order that he reinstate his MUA workers. The ACCC had decided to await the outcome of the High Court decision before deciding whether to commence legal action against the MUA.

In a 6-1 decision (Justice Callinan dissenting) the High Court upheld the injunction forcing Corrigan to reinstate his MUA workers. It initially appeared to everyone that the MUA had won a comprehensive legal victory and the sacked workers would soon be getting their jobs back.

However, soon after the decision, it became apparent that the High Court had not ruled entirely in the MUA’s favour. While the High Court affirmed Justice North’s orders requiring Patrick to rehire the sacked MUA workers, it also decided to vary Justice North’s orders. The High Court varied the orders to grant the administrators of the Patrick labour hire companies discretion as to whether they would rehire all of the sacked MUA workers, or only some of the workers. In other words, whilst the Patrick labour hire companies could only hire the former MUA workers, the administrators in charge of those businesses could decide whether to rehire only part of the sacked MUA workforce if this would improve the financial viability of these companies.

As stated by the majority:

It is one thing to restrain Patrick operations from giving effect to the termination of the labour supply contracts…It is a very different thing to fetter the discretion of the administrators. There was an appealable error (in Justice North’s initial orders) which can be rectified by the insertion of an appropriate qualification.

Coombs and the MUA were very unhappy with the High Court’s decision. Coombs was immediately quoted in the media as saying:

I’m not interested in getting one-third or two-thirds or three-quarters of them back. They’ll all be going back or none of them will be going back.[4]

We are not going back on their terms, and if we have to stay out a bit longer to get back on our terms, we will stay out a bit longer.[5]

In other words, the MUA did not care that the High Court had made a decision concerning the legal position of the parties to the dispute. Even though High Court had provided clear guidance on how the dispute may be resolved, the MUA was determined to ignore this direction and to continue engaging in the illegal boycott conduct until they got exactly what they wanted.

The MUA’s pronouncements that it would effectively ignore the High Court’s ruling was probably the lowest point in the dispute in terms of the parties showing a blatant disregard of the rule of law. If the parties were willing to ignore the highest court in the land then there was little hope of the courts providing a legal resolution.

We were also concerned that if the MUA and the ACTU could be so blasé about the consequences of ignoring the court’s rulings, including the High Court’s ruling, there would be nothing to stop both Patrick’s and the Howard Government from ignoring any court rulings that they did not like.

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[1] “Unions Defy Court Ban”, Australian, 21 April 1998, p. 1.

[2] See “Global unionists threaten Australia”, Financial Review, 23 April 1998.

[3] “Watchdog and the waterfront”, The Age, 4 may 1998, p. 132

[4] “Checkmate: Wharfies rejoice but it’s a move too soon”, Daily Telegraph, 5 May 1998, p. 1.

[5] “Any settlement will come on the wharves and not in the courts”, SMH, 5 May 1998, p. 7.

The Untold Story: The ACCC’s role in the Waterfront Dispute - Part 9 - Things get uglier

Part 9 - Things get uglier

Kids on the pickets

Undoubtedly, the most shocking image of the entire Waterfront Dispute was the appearance of terrified children on the picket lines. On the Tuesday after the Easter Weekend a number of children were brought to Port Botany by their parents. When police started trying to remove these children, the children became very upset and started screaming and crying. The media was there to capture the children’s distress and the story featured heavily on television news broadcasts over the next few days. Indeed, this footage became one of the defining images of the whole dispute.

But what was the response of both sides of the dispute to this upsetting event?

Both sides of the dispute immediately tried to turn these terrible events to their own political and media advantage.

Peter Collins, the former NSW Liberal opposition leader, immediately branded the use of children as a “deliberate stunt by union organisers to use children to gain sympathy for their cause”.[1] He added:

…people certainly don’t like seeing children used as human shields in an inflamed industrial theatre, as they were on Tuesday. Using children in this fashion is abhorrent, inexcusable and unacceptable by any standard.

Vic Slater, the Assistant National Secretary of the MUA responded with one of the most ludicrous statements of the whole dispute[2]:

Let’s hope that the hypocrisy of politicians complaining about wharfies allegedly using children on the hustings is not entirely lost on the public. No doubt our Federal MP’s kissing babies for photo opportunities in the lead-up to the next election will become daily fare in the media.

How Vic Slater could seriously compare MP’s kissing babies to young children being forcibly removed from violent picket lines in tears is beyond me.

Slater went on to claim that the person who brought the children to the “peaceful assembly” was not a member of the MUA. He added that the person had only brought his kids because he could not organise suitable child care. He made the following promise[3]:

And it won’t happen again. The Port Botany picket has set up it’s “mobile crèche” away from the picket – like those already operating in Fremantle, Melbourne and Brisbane. People donated toys and food for children.

I will quote the rest of Slater’s article because it has always shocked me at its cynicism in trying to turn a terrible event into a public relations win for the MUA[4]:

Wives and children, however, do have the right to be with their families in times of crisis. Their husbands and fathers have lost their jobs. Who will feed them? Who will pay the mortgage so they are not booted out of their homes? Who will pay the child-care fees, now they are out of a job?

The ACTU, other unions and other MUA members are doing all they can, but the myth of Australian’s “feeling comfortable and safe” under the Howard government is gone forever. Union bashing is not a family value.

The media are well aware of this. They have been phoning us each day asking to interview families about their plight. And it is the media which had requested our members get families behind officials during television broadcasts.

Workplace Relations Minister Peter Reith claims “the picket line is no place for children”. No doubt he believes women should stay in the kitchen and children should be seen and not heard.

The truth is that wives and children are even more affected by this dispute and the men who have lost jobs. And they have a right to be there as a family and have their say.

What's more, this is Easter. It is not only a time when families are traditionally together, it is a time when schools and preschools are on holidays. Childcare is even more difficult to arrange, especially given this government has cut $800 million from the children's services budgets – putting centre–based care, family day–care, pre–school, after–hours programs, occasional and respite care out of the reach of the majority of Australians.

This dispute, which Mr Reid has manufactured, affects all family members, not just MUA members.

It may be difficult for readers to grapple with the reality that these 2000 wharfies that Patrick has effectively sacked are human beings with mothers and fathers and wives and children of their own – not the faceless demons painted by the government. They are people. What's more, they are people with a long tradition of sticking together and working as a community. 

And they are not just fighting for their jobs, their fighting for their children's futures. It is only natural that such a time their children want to be near them.

I think the debate between Collins and Slater provides a stark illustration of the moral bankruptcy of both sides. Neither side truly cared about those kids in the middle of the picket line, nor about any of the other people who were injured and victimised during the dispute. Every person involved in the dispute at the grass roots level were seen by the MUA, ACTU, Patrick and the Howard Government as little more than props to be moved around in front of the media to try to win over popular support.

International action

In mid April 1998, it became apparent that the MUA’s efforts in gaining international support for its cause was starting to be successful.

As reported in the media at the time, the American Federation of Labor and Congress of Industrial Organisations (AFL-CIO) asked its 17 million members to boycott Australian farm products.[5]

This was followed by an announcement by the International Longshore and Warehouse Union (ILWU) that it was calling on all union members to stop buying Australian beef and produce. The ILWU president, Brian McWilliams, was reported as saying:

The ILWU sees this attempt to break the Maritime Union of Australia as part of a larger global strategy by international shipping and stevedoring companies and various conservative national governments to bust dock worker unions around the world. We will not stand for this kind of activity.[6]

These announcements caused a great deal of concern in Australia.

However, these proposed boycotts of farm produce did not seem to make a great deal of sense in the context of the Australian dispute, as only a few ships had been loaded using non-union labour. The ILWU’s explanation for the boycott was:

The National Farmers Federation is one of the main instigators of this attack on the MUA so we will begin by targeting it.[7]

The ILWU also hinted that it was proposing to black ban any ships which had been loaded or unloaded by Patrick Stevedores. In this regard, McWilliams was quoted as saying:

It will be several more days before any ships using Patrick’s scab docks can make it to our shores and time is of the essence.[8]

After these threats were made, Professor Fels weighed into the debate in a significant way. He announced that the ACCC, through its lawyers, had sent a letter to the MUA the previous Friday, 17 April 1998, warning them about their conduct in seeking to facilitate a global boycott.

In the letter, the ACCC demanded that the MUA:

• cease aiding, abetting, counselling, procuring or conspiring with the ITF to facilitate a global boycott; 

•  advise the IFT not to threaten or implement any boycott of Australian shipping; and

• refuse to provide the ITF or any other overseas affiliates with information about any ships which had used non-union stevedoring services in Australia.[9]

The ACCC also demanded that the MUA maintain all relevant records relating to the matter, including emails and any other computer records. The ACCC warned the MUA that if it did not preserve these documents it could subsequently face contempt of court proceedings:

Destruction of such material in anticipation of the obligation to produce documents in discovery is contempt of court.[10]

The letter ended with the threat that the ACCC reserved the right to commence legal proceeding against the MUA without further notice.

The ACCC demanded a response by 10am on Monday, 20 April 1998.

The MUA’s response was swift and direct. Coombs was reported as saying in response to the ACCC letter:

Our lawyers laughed (when they saw the ACCC’s letter), they thought it was a joke.[11]

Vic Slater was also quoted as saying that it was “unlikely” that the MUA would respond by the ACCC’s deadline as the ACCC was “well down on our list of priorities at the moment”.[12]

The MUA did provide some more sensible reasons for their decision not to provide the undertaking. For example they subsequently claimed to the ACCC that they did not need to ask the ITF to take action as the ITF could see what was going on in Australia and could decide to take its own action unilaterally.

However, Fels had a response to this claim:

The ITF constitution requires it to take boycott action only when recommended by its local affiliate and there is other evidence implicating the MUA in the boycotts.[13]

Professor Fels concluded by saying that:

The commission is at the point where it would have little choice but to seriously consider legal action against the MUA.[14]

However, the MUA had some justification for feeling cocky about the ACCC’s legal threats. This was because of the recent outcome in separate legal proceedings commenced by Patrick in London against the ITF.

Shortly after the dispute started Corrigan commenced legal proceedings in London seeking injunctions to prevent the ITF from facilitating a global boycott of ships stevedored using Patrick non-union labour. Corrigan had been successful in the first instance in obtaining an interim injunction.

However, the British High Court had later decided not to continue the injunction. In his judgement, Justice Thomas said: [15]

This court is being asked to use its injunctive powers on an interlocutory basis in connection with an industrial and political dispute in a another sovereign state by requiring the ITF in this jurisdiction and throughout the world not to induce its affiliates to take industrial action that is accepted can be lawful in other sovereign states. It may well be that such action in relation to this political and industrial dispute in Australia might be entirely in accordance with the law as well as the social and political views prevalent in that state, though contrary to the law currently applicable in Australia and the policies being pursued by the Government of Australia.

It is clear that the granting of the injunction would severely impair the ability of the ITF to lend support to the MUA in a bitter and political industrial dispute in Australia. The ITF's support appears on the evidence before me to be of vital significance given the history of their support in relation to what happened at Cairns, Dubai and with PCS at Webb dock. To deny that support at the commencement of an industrial and political dispute would be even more detrimental; as Lord Diplock said in NWL v Woods [1979] ICR at p 879

"it is in the nature of industrial action that it can be promoted effectively only so long as it is possible to strike whilst the iron is hot; once postponed it is unlikely that the action can be revived.

The ACCC had never contemplated trying to take legal proceedings against the ITF in another country to prevent it from inducing other unions to engage in boycotts in support of the MUA. Rather, our focus had always been on trying to take legal proceedings against the MUA in Australia for inducing the ITF and any foreign unions from engaging in boycotts against Australian shipping.

MUA's response to the ACCC

The MUA’s lawyers had written to the ACCC to ask for more time to respond to the ACCC's legal threats. They had also foreshadowed that the MUA would be denying the allegations of facilitating the global boycott.[16] The ACCC agreed to extend the MUA’s deadline to provide the undertakings after these requests from the MUA’s lawyers.

While the MUA’s lawyers were politely asking for more time to respond to the ACCC’s allegations, Coombs was taking an entirely different approach. He went on ABC radio to make the following colourful comments:

The man’s (Professor Fels) got an ego bigger than Ayers Rock and harassing me with faxes and threats, you know, if he’s got evidence of something, why doesn’t he do something about it.

I don’t know how they (ACCC) expect me to call off international boycotts. Whatever these affiliates of the ITF do is their business.[17]

By the end of April 1998, the ACCC had prepared a very strong case against both the MUA and a number of MUA and ITF officials. The ACCC could have commenced legal proceedings at the end of April 1998. Indeed, the Waterfront Team and many of the ACCC’s senior management wanted to commence legal proceedings at that time. However, everybody appreciated that it was a very significant decision to commence legal proceedings against the MUA.

Professor Fels and the Commissioners decided to wait until the result in the MUA’s legal proceedings against Patrick were known before making a call about whether to commence our own legal proceedings. As stated above, the MUA had won an injunction before Justice North of the Federal Court requiring Patrick to reinstate its MUA workers. Corrigan had immediately appealed North’s decision to the Full Federal Court and won a stay of North’s reinstatement injunction pending a final decision from the Full Federal Court.

On 23 April 1998, the Full Federal Court dismissed Corrigan’s appeal against North’s order and reaffirmed the order requiring Patrick to reinstate its MUA workers. As reported at the time, this was a “stunning blow” for Corrigan and the Howard Government.[18] Corrigan immediately appealed to the High Court of Australia and again sought a stay on the order to reinstate his workers. Justice Hayne of the High Court granted Corrigan a stay of the injunction pending a final hearing of his appeal by the High Court of Australia.

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[1] “Children in the front line”, The Sydney Morning Herald, 16 April 1998, p.17.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] “US dock bans hit”, The Sunday Age, 19 April, 1998, p. 1.

[6] “US unions call boycott”, Sunday Herald Sun, 19 April 1998, p. 6.

[7] Ibid.

[8] Ibid.

[9] “Fels threatens Coombs over foreign action”, Australian, 20 April 1998, p. 2.

[10] Ibid.

[11] “ACCC weights in on docks war”, Financial Review, 20 April 1998, p.4.

[12] “Fels threatens Coombs over foreign action”, op. cit., p. 2.

[13] “ACCC weights in on docks war”, op. cit., p. 4.

[14] “Fels threatens Coombs over foreign action”, op. cit., p. 2.

[15] Patrick Stevedores Operations Pty Ltd v International Transport Workers, 21 April 1998 at http://www.austlii.edu.au/au/special/patrick_uk.rtf - NB: this appears to be an unfinished draft of the final judgement by Justice Thomas. Strange that such a document should be publicly available.

[16] “Fels holds back for another day”, Financial Review, 21 April 1998, p. 4.

[17] “Stevedore ‘deal’ under investigation”, Australian, 23 April 1998, p. 4.

[18] “Stunning blow to Government”, The Canberra Times, 24 April 1998.

The Untold Story: The ACCC’s role in the Waterfront Dispute - Part 8 - Easter Aftermath

Part 8 – Easter Aftermath

Close call

When I got back to work on Easter Monday, I found out that it had not just me and my Assistant Director who had been in the thick of things over Easter. The ACCC’s NSW Regional Director (RD) had also had a very close call.

It turned out that our RD had decided to go down to the picket line on Saturday morning to observe events. Unfortunately, he had gone alone, as no other Sydney staff member had been willing to go with him. On arrival, he did what most of the ACCC’s RD's had been doing – he introduced himself to the leaders of the picket line as the ACCC’s NSW Regional Director and advised them that he was there to observe events.

During the picket, a number of MUA members and their supporters had been listening to the radio. There had been a running commentary on the radio about developments at Port Botany and the movements of the Australian Endeavour.

At some stage during the broadcast, Professor Fels had come on the radio and announced that the ACCC had a number of officers observing events at Port Botany. While this was supposed to be a reference to me and my colleague, who were behind the picket lines, it was immediately understood by everybody on the picket line to be a reference to the ACCC RD who, it now seemed, was on the “wrong side” of the picket line. After Professor Fels made his comment, one of the picketers immediately turned to the rest of the picket line shouted - “That’s the ACCC guy” and pointed at our RD. At this, half a dozen picketers started walking rapidly towards the RD.

It was apparent to the RD that these pickets meant to cause him harm. Accordingly, the RD started to move away from the men and towards his car, very quickly. He got to his car, jumped in and drove away at speed. Unfortunately, he noticed that some of the men who had been coming towards him had also apparently jumped into a car and were coming after him.

After a short time, the RD realised that the car pursuing him only had one occupant. While this greatly reassured him, he was still concerned about what this pursuer may do to him if he caught him.

After trying to lose the pursuer through the streets of Port Botany for some time, the RD had a clever idea. He decided to simply stop on the side of the road, with the engine running and then sit in his car. He reasoned that if the pursuer decided to get out of his car to come over to the RD’s car, then the RD could wait until the pursuer got quite close and then slam his foot on the accelerator and drive off at speed. In this way, there was a chance he could lose the pursuer once and for all.

The pursuer obviously had not expected this development and was unsure of what to do next. I suspect that the pursuer also did the maths. He probably realised that if there was any trouble it would be a one-on-one contest rather than the more comfortable 30-to-1 odds which he had enjoyed down at the picket lines.

Accordingly, the pursuer decided to drive away, leaving our RD sitting nervously in his car.

After a little while, the RD steadied his nerves and drove home. That was the last time the RD went down to observe the picket lines.

Recriminations and harassment

In the days following the Easter weekend, the recriminations were flying thick and fast between the MUA and the ACCC. John Coombs accused the ACCC of harassing the MUA.

Professor Fels responded to these criticisms by saying[1]:

It was in every paper and TV screen in the country that the MUA were proposing to breach section 45D and DB of the Trade Practices Act and, in those circumstances we had to respond.

We were quite surprised Mr Coombs said we here harassing him. We were reacting to widely publicised comments from him that the MUA would be breaching the Act.

We have been interviewing people from the waterfront over the last couple of months in response to a couple of possible breaches on the waterfront that have come to our notice.

We are on no one’s side in this dispute. We will look at any alleged breach of the Act by anyone on either side, whether on the product market or the labour market side, in an impartial manner.

The fact is that the Parliament has recently passed the law prohibiting secondary boycotts and our duty is to apply the normal techniques of law enforcement in this area.

Coombs’ references to the ACCC “harassing” the MUA may have been a reference to an incident which occurred one night around Easter when I insisted on hand delivering a letter to the MUA’s national office.

I was with two AGS lawyers one night after we had prepared yet another warning letter to the MUA about its boycotts. Ordinarily we would have emailed the letter or had it delivered by a process server to the MUA’s Head Office.

On this particular occasion, I announced to the two AGS lawyers that I had decided to personally, hand deliver the ACCC’s letter to the MUA’s Head Office that night. When the lawyers asked me why, I explained that I was sick of the fear and intimidation that we had been forced to accept since the Waterfront Dispute broke out. I said it was not right for the team involved in the Waterfront matter to live in the constant fear of being beaten up just because we were doing our jobs.

I probably added a few more clichés for good measure – for example, if we change the way we live our lives, then the proponents of violence have won and so on. I have never been terribly slow at climbing up on my high horse.

The two AGS lawyers looked at me quite nervously. I think the question on both of their minds was “Do we have to come with you?” So much for stirring them both up into an idealistic fervour with my fighting words!

I remember turning to one of the lawyers and saying “You don’t have to come with me if you don’t want to. I know you have a young family.” I had said this as a joke to try to relieve the tension which my announcement had created. However, the lawyer that I had directed my comment to, just looked at me and said, “Thanks Mike” and left.

I must say this lawyer’s decision to leave made me realise the stupidity of my plan. However, despite having this realisation, it did not dissuade me.

The other AGS lawyer (who incidentally had a grown-up family) and I started the fairly long trek from the ACCC offices, which at that time were at 175 Castlereagh Street in Sydney, to the MUA’s Head office on Sussex Street.

When we arrived at the MUA’s head office we observed that the front door was locked, and that there was nobody downstairs in the small lobby. However, we noticed that there was an intercom. In addition, all the lights in the offices upstairs were on and it sounded to us like there were a great number of MUA staff upstairs working back late.

I buzzed the intercom and a man answered. I announced that I was Michael Terceiro from the ACCC and that I had a letter which I had to hand deliver to the MUA. The intercom went quiet for a few seconds, before the voice came back and said, “Just slide it under the door”. The AGS lawyer immediately turned to me with a look on his face which said, “Well, we tried.”

However I was determined. I buzzed the intercom again. The voice again answered and I again explained who I was and that I had to deliver the letter personally to an MUA official. This time the voice was much more decisive – he commanded me to slide the letter under the door.

I was quite annoyed by this stage. I buzzed the intercom a third time. This time the voice did not answer. I buzzed a fourth time and again there was no answer.

I must admit I was getting more and more annoyed. I had wanted to prove a point - ie I was not going to live in fear of getting beaten up for just doing my job. But how could I prove my point unless I could actually come face to face with at least one MUA official or employee late at night on their own turf and deliver my letter?

I then remembered that I had the general switchboard number for the MUA in my mobile phone. Accordingly, I took out my mobile and called the MUA’s reception.

Coincidentally, I got through to the same voice that I had been speaking to earlier over the intercom. I again explained to him who I was and that I needed to hand deliver the letter to an MUA official. I probably made it sound like I would get the sack unless I personally delivered this letter to somebody at the MUA, which was clearly not the case.

The voice on the telephone was obviously getting sick and tired of me by this stage. He told me with considerable exasperation that:

• nobody from the MUA was going to come downstairs to get the letter off me; 

• he was very busy; and 

• I should just slide the letter under the door and go away. 

He then hung up.

I was totally miffed by this stage, so I again called the MUA’s switchboard number. I heard someone answer the phone but as soon as they heard my voice, they hung up.

It was at that stage that I finally accepted that no MUA person was going to come downstairs to get the letter off me and that I had no other option but to slide the letter under the door.

Accordingly, I slid the letter under the door (putting the AGS lawyer and my “former” friend out of his misery) and we left.

Despite not actually hand delivering the letter to an MUA official, I found this entire episode quite satisfying. We had not let fear dictate our actions (which is not to say that we were not terrified the entire time when we outside the MUA offices trying to deliver our letter).

It dawned on me later that maybe the MUA had not come downstairs because they had been scared of us. The MUA may have suspected that my request to serve a letter on the MUA late at night, was simply a ruse to try to get them to open the front door, so that 100 SAS Commandos could immediately swarm into their offices and beat them all up. Maybe fear did actually triumph that day.

Legal actions

During the Waterfront Dispute, there was a plethora of legal actions. I will not be discussing all of these legal actions in any detail in the Untold Story because they have been dealt with in considerable detail in both Waterfront and the Bastard Boys mini-series. I will only be touching on various aspects of these actions as they relate to the ACCC's investigation and litigation.

The MUA had commenced legal proceedings against Patrick, almost immediately after the sacking, seeking the reinstatement of the MUA workforce. These legal proceedings raised various allegations including claims that Patrick had breached the Corporations Law by effectively stripping assets from its operating companies.

Patrick then commenced its own legal proceedings against the MUA in Australia and against the ITF in London. In Australia, Patrick was seeking damages against the MUA for the effect of the various picket lines on its business. In London, Patrick was seeking various orders to prevent the ITF from facilitating a global boycott.

The MUA subsequently commenced further legal proceedings against Patrick, Corrigan and Peter Reith alleging that they had been involved in a conspiracy to sack the MUA workers.

Corrigan was continually telling the media at the time that he had advice from his lawyers that all of the actions he had taken to get rid of his MUA workforce were “completely lawful”.

We at the ACCC wanted to know whether Corrigan’s views about the sacking were legally correct. After speaking to our own lawyers, we formed an entirely different view to Patrick on the legality of its actions. Our view was that Patrick’s actions in sacking its entire MUA workforce were almost certainly unlawful. We also believed that the MUA would ultimately be successful in its primary case – namely, that the sacking of the MUA workers had been illegal and that they should be reinstated.

We also formed the strong view that the MUA must have known that their prospects of winning their case for the reinstatement was very strong.

This raises the obvious question:

Why did the MUA decide to engage in blatant breaches of the TPA, and to ignore numerous warnings from the ACCC about their conduct, if they must have known that ultimately they were going to win their case?

I believe that the reason the MUA decided to engage in unlawful picket activity, despite knowing that they would win their case, was because they did not want to take the chance that the MUA would be shown up as lazy and incompetent by the non-union labour. In other words, the MUA feared that if the non-union workers were able to work unimpeded, that they may be able to achieve higher container lift rates than the MUA. No doubt if this had happened, Corrigan and Reith would have both used this information to argue that the MUA had been out performed by a bunch of half-trained farmers.

I think it was one of the MUA’s greatest propaganda successes to convince the various unions and other people who supported them during the dispute that the MUA needed to engage in boycott activity because the outcome of their legal proceedings was uncertain. The MUA never had any doubts that they would win their case for reinstatement. Indeed, they won their case quite convincingly at every stage in the court process – ie at first instance, on appeal to the Full Federal Court and finally on appeal to the High Court.

I also have my doubts that Corrigan ever actually believed that his extreme strategy of sacking his entire MUA workforce was going to work. While I am sure that Corrigan hoped that he would be successful in getting rid of his MUA workforce, he always knew that this was going to be a highly unlikely outcome. I think Corrigan knew that whatever happened, he was likely to receive a significant handout from the Howard Government to assist him in retrenching many of his MUA workers. That is exactly what happened – the stevedoring industry was permitted by the Government to impose a levy on containers which was then used to fund MUA redundancies.

Simply put both the MUA and Patrick had highly cynical motives for their actions, although they continually tried to dress up these motives as ideological convictions. Both the MUA and Patrick were also able to win over a great deal of support by parading these false ideological convictions – ie the MUA were successful in "taking in" most of the union movement as well as a great deal of public opinion, while Patrick was successful in "taking in" Peter Reith and the Howard Government.

Both parties presented the case to the media and the general public as the quintessential battle of capital against labour – however, nothing could have been further from the truth. The MUA’s primary goal in the dispute was to maintain its closed shop on the waterfront and to preserve the high wages and excellent working conditions enjoyed by its members. Corrigan’s primary goal was to cut his costs so that he could make lots of money. However, rather than cut costs like most businesses by economising, becoming more efficient and innovating, Corrigan wanted to cut his costs by getting corporate welfare from the Howard Government.

Ironically both the MUA and Patrick came out of the Waterfront Dispute as winners. The main losers from the dispute were the Australian taxpayer, who ended up effectively funding the redundancies, and a large number of Australian businesses which suffered financial damage because of the boycotts. However, more about the winners and losers later in the Untold Story.

---

[1] “Fels walks the industrial relations tightrope without fear or favour”, The Australian, Monday, 13 April 1998, p. 2.

The Untold Story: The ACCC’s role in the Waterfront Dispute - Part 7 - Easter 1998 Continued

Part 7 - Easter 1998 - Continued

Violence on the picket lines

By about 11am the picket line was becoming very agitated. They were shaking the gates at the entrance to the facility and it looked like they were going to break through. We knew if this happened, we would be in a great deal of trouble. We believed that it was fairly certain that if the picketers got through the gate they would beat up everybody on the wrong side of the picket line.

I remember I turned to my colleague when it looked like the fence was going to collapse and the picketers were going to swarm into the facility, to ask him what he thought we should do if that happened. We both decided that we were too tired to run away and anyway there wouldn’t be anywhere on the dock to hide from the 1000 plus picketers. We were also quite certain at the time that if the gates came down the fact we were ACCC officers would not matter to the picketers. Accordingly, we decided that our only option was to stand our ground and try to fight our way out. I know this sounds very dramatic, but that is what we had resolved to do at the time.

The manager of security came across to us and told us that we had to go inside. He explained that as part of the deal with the MUA, all the security guards and guard dogs had had to be “secured” in a room so they would not threaten the safety of the tugboat crews. Apparently, some picketers had seen me and my colleague outside and had complained to Patrick that we had not been “secured”.

At the time, I thought this was the most ridiculous thing I had ever heard. On the one side of the picket line, there were about 15 security guards, six guard dogs, one former British SAS officer, 2 Freehills lawyers, 1 cameraman and two ACCC officers. On the other side, there were at least 1000 picketers shouting out at the top of their voices that they were going to kill us. And the MUA had the gall to claim that we posed a threat to them?

Anyway, we agreed to the manager’s request and went inside the building near the entrance to the container facility. This way we would be out of the sight of the picketers. On entering this building, we were struck by how the entire inside of the building had been destroyed by the MUA workers when they were removed from the premises on the previous Tuesday. All the filing cabinets had been opened and the documents strewn all over the floors, every piece of furniture which could be pushed over had been pushed over, property such as computers and other electrical equipment had been smashed, cabling had been pulled out of the walls, and the windows had been smashed. Obviously, the MUA had not gone quietly!

We were inside this building when the tugboats brought in the Australian Endeavour. Once the vessel had berthed and been tied up, we were able to leave the building to watch the unloading.

Fortunately, for us the gates did not collapse. I cannot remember precisely what distracted the mob, but it may have been the arrival of the bus with the non-union labour force.

I remember watching as the bus of non-union workers approached the picket line. The picketers were hurling abuse at the occupants of the bus and throwing rocks. As soon as the bus was close to the picket line it was swarmed upon by the picketers, who proceeded punch, kick and spit on the bus, and to hit the bus various makeshift clubs. As far as I could see, the police who were in attendance did nothing to stop the wholesale destruction of the bus.

The bus finally made it inside the fence. I immediately went up to the bus to examine the damage.

Most of the windows had been smashed and there were hundreds of dents on every side of the bus. There was great deal of saliva on the side of the bus from where all the picketers had spat on it. I suspect that the bus was so badly damaged that it had to be written off - every panel and almost every window would have had to be replaced.

The non-union labour force had obviously been expecting this less than friendly reception and had taken some precautions. They had brought mattresses on the bus, which they pushed up against the windows to protect the occupants from being assaulted or struck with projectiles. Even though the picketers were able to smash the windows, they were unable to assault any of the non-union workers inside because of the mattresses. Unfortunately, this was not the case at some other sites where non-union workers were assaulted by picketers.[1]

When the non-unionists got off the bus, they were visibly shaken. I remember some of the workers looked as white as sheets when they got off the bus.

This whole episode made me very angry. These non-union workers were being used by both sides as the proverbial pawns in the entire Patrick – MUA game.

First, I could not believe the barbarism of the picketers. I have no doubt that if the picketers had been able to get their hands on the occupants of the bus that they would have seriously injured or even killed these people.

Second, it seemed to me that it would have been very easy for Patrick to bring these workers in by boat or even by helicopter rather than requiring them to run the gauntlet of the picket line. I suspected then and still suspect now that these workers were sent through the picket line by Patrick for the cynical purpose of provoking the picketers into violence which Patrick could later use to try to turn public opinion against the MUA.

Arrival of the Australian Endeavour

Some time after the Australian Endeavour arrived at Port Botany, the non-union labourers started unloading the vessel. It was at this time that Corrigan arrived via helicopter. He was followed by a steady stream of helicopters carrying journalists from every major news agency. Corrigan had planned to helicopter in the reporters and then to hold a press conference.

Once all the reporters had arrived, Corrigan gave a short speech during which he declared that today was a momentous day. He said that it was the first time in 50 years that a container ship had been loaded in Australia using non-MUA labour. It was obvious to all that this was the story which Corrigan wanted all the reporters to report.

Having worked with Professor Fels for a few years, I had learnt a great deal about dealing with the media. I knew immediately that 30 journalists were not going to write 30 stories with the same angle at the request of Corrigan. Each one of these journalists would be looking for their own individual angle on the day’s events.

As soon as Corrigan opened the press conference for questions, he was hammered with questions from a multitude of different angles - very few of which adopted the line which Corrigan wanted them to report. I have to admit that I enjoyed seeing Corrigan’s discomfort at the questions which he was being asked. He was becoming more and more exasperated and angry at the media’s questioning.

When the press conference was over, the helicopters started shuttling the reporters and Patrick’s management out of Port Botany. At one stage Patrick’s then Company Secretary, who had also been shuttled in with Corrigan, saw me amongst the crowd. He immediately came across to me for the sole purpose of telling me off because the ACCC had not yet commenced legal proceedings against the MUA.

At this stage, I had been working for 31 hours straight and was in no mood to stand there and listen to abuse from anybody, much less somebody employed by Patrick. I must admit that at the time I gave some serious thought to just punching him in the head. I thought that while this person was probably sitting at his local yacht club sipping a latte, approximately 30 non-union workers were taking their lives in their hands by trying to get through a 1000-strong mob.

I hate to say it but the APS Code of Conduct did not play a part in my decision not to punch him in the head. Rather, the main reason I didn’t punch him in the head was because I was so exhausted – I am sure it would not have been much of a punch! Instead, I decided to walk away.

Extraction

After the press conference, the Assistant Director and I decided that it was time to leave.

The problem was that we had not worked out how we were going to get out. It seemed that there was no option but to catch a helicopter ride out of Port Botany, as trying to walk out the front gate would have been suicide. By this time, the picket line was even more incensed as the non-union workers had started unloading the vessel.

I should add that even to our untrained eyes, the non-union workers did not seem to very adept at unloading containers. They were going very slowly and we witnessed a few near mishaps. However, given what these workers had just been through I think it was only fair to give them the benefit of the doubt. I doubt I would be able to focus on my job properly either, if I had just been attacked by a mob of 1000 people.

I realised that by this stage my Assistant Director was well and truly over the whole Port Botany experience. Indeed, I recalled an earlier warning sign that he was at the end of his tether and needed to go home.

A few hours before we had been wandering around the container facility by ourselves without the mandatory security guard and guard dog. A security guard had approached us to tell us off for not following the security protocols. My Assistant Director immediately turned to this security guard (who by the way must have 6 foot 6, a gym-junkie and armed with what appeared to be a extendable baton) and started to berate him at the top of his voice for 5 minutes about how the entire security arrangements were a joke and that one measly guard and a guard dog were not going to protect us from 1000 picketers. The security guard just listened patiently to my Assistant Director's tirade and then simply said “okay” before walking away.

There were also a few signs that I was losing it as well. For example, I remember going up to one of the security guards at one stage and asking him if I could pat his guard dog. He looked at me as if I was mad and said “Yea, if you want to lose a hand!”

When the opportunity came for us to hitch a helicopter ride, I made sure my Assistant Director got on one of the first helicopters out.

I was forced to wait until the very last helicopter. Despite the fact that I had been working over 30 hours by this stage, I soon discovered the futility of trying to push in front of a journalist for a seat on a helicopter when they are facing an Easter Saturday deadline.

I eventually got onto the very last helicopter ride out of Port Botany. I strapped in, and tried to avoid eye contact with my fellow passengers.

I had a nervous moment when the person immediately next to me in the helicopter asked me, when we were in the air, whether I was one of the “Freehills lawyers”. When I replied that I wasn’t a Freehills lawyer but rather was an ACCC officer I thought from the look on the guy's face that he was going to push me out of the helicopter. Fortunately for me, Corrigan just shook his head and turned away with a slightly miffed look on his face.

When we landed over at Mascot, I asked Corrigan’s bodyguard whether I could get a lift with them back to the city. His bodyguard refused so I asked Corrigan directly. He agreed quite unenthusiastically.

As we drove back to the city in Corrigan’s security van, he discussed with a colleague his frustration with the media and how they didn’t seem to want to run the story he wanted them to run. I thought to myself “This guy really needs some media training from Professor Fels”.

I felt like telling him that he couldn’t expect 30 journalists to run a story about the days events from exactly the same angle – rather he should have tried to give the story exclusively to one paper and one television network. In this way, he may have been successful in getting somebody to run his preferred spin on the story. However, I decided against giving Corrigan any media advice partly because I was bumming a ride and partly because I could see Corrigan was in a very bad mood. He has started the day believing that it would be his crowning glory– but it was now rapidly turning into a media fiasco.

When I got back to work, I jumped in a cab and went home. By the time I got home, it was about 7pm. It dawned on me that I had been working continuously for 34 hours except for a five-minute nap on the wharf earlier that day. I fell asleep as soon as I got home and woke up 17 hours later.

When I woke up, I asked myself whether our trip to Port Botany had been worthwhile?

It was clear that the entire escapade had been extremely dangerous for both of us – we had been chased by boats on Port Botany, stranded on a wharf at 1am, forced to climb over a deep pit in pitch darkness, had rocks thrown at us and had come perilously close to having to fight our way out of the container facility. Add to that the fact that we had obtained virtually no evidence and you could hardly call it a red-letter day.

However, we did gain one important bit of intelligence from the whole Port Botany experience - we now knew unequivocally that both sides of the dispute hated us. It was apparent that Patrick hated us because they thought we were not sufficiently involved in the dispute, while the MUA hated us because they thought we were too involved in the dispute!

---

[1] “Attack on bus leaves four injured”, SHM, 16 April 1998, p. 16.

The Untold Story: The ACCC’s role in the Waterfront Dispute - Part 6 - Easter 1998

Part 6 - Easter 1998

Introduction

One of the most significant events in the entire dispute occurred on the Easter Weekend, which fell in early April 1998. The Australian Endeavour container ship, which was part of ANL, then a government owned shipping company, was to berth at Port Botany on Easter Saturday and be unloaded using non-union labour. This was to be the first time in over 50 years that an Australian container ship was to be unloaded by somebody other than the MUA. Indeed, Corrigan and Peter Reith were very publicly talking up this event as the decisive moment in the whole dispute. It was inevitable that the ACCC would be dragged in, whether we liked it or not.

We were obviously very busy trying to investigate simultaneous pickets in almost every container port in Australia, as well as trying to investigate the overseas conduct by the ITF in organising a global boycott. Accordingly, I had started work at 9am on Good Friday.

I had been working in my office for a few hours when I received a call from a senior manager who floated an idea by me. He explained that the Australian Endeavour was scheduled to arrive in Port Botany the next day, on Easter Saturday, 11 April 1998. He said Professor Fels wanted to get some ACCC officers onto the Australian Endeavour before it arrived at Port Botany so that he could announce that he had officers on the vessel who were safeguarding its passage into Port Botany. The idea was that the two officers would be put on the vessel – namely, me and my Assistant Director - via helicopter.

I carefully considered this proposal for about a nanosecond and politely but firmly refused the assignment. I decided to decline the assignment after carefully weighing up the following factors:

• the very strong emotions that had been stirred up in the last few days;

• the significance of the Australian Endeavour making it into Port Botany and being unloaded by non-union labour;

• the fact that the Australian Endeavour was likely to be crewed by between 15 to 20 people, most of whom would be MUA members; and

• (the decisive factor) the fact that I was not a very strong swimmer.

I was genuinely concerned that both I and my Assistant Director may end up going over the side of the Australian Endeavour either accidentally or on purpose. I thought our presence would be much too inflammatory for the dozen or so angry MUA crew members on board the vessel.

I subsequently discovered that the ship’s captain was also not very keen on the plan. In addition to having concerns about our safety, he was also concerned that the two ACCC landlubbers would end up getting seasick.

A while later I received another call from this same senior manager who suggested a different and marginally less hair-brained scheme – namely to “embed” both me and my Assistant Director inside the Patrick Port Botany container facility, behind the picket lines. This would allow Professor Fels to say that he had ACCC officers on the wharf. For some reason I agreed to this proposal, mainly because I though it was a much safer option that Plan A.

I started to regret my decision when I received my detailed instructions on how we were supposed to get to Port Botany. We had to meet two of Corrigan’s lawyers, from the Freehills law firm, at the Opera House wharf at midnight on Good Friday and then get on board a high speed charter vessel, which would take us to Port Botany. I seem to recall I may have been provided with a password to use when we met up with the Freehills lawyers. I cannot recall what the password was, but it was probably something like “Rosebud”.

Getting behind the picket lines

Accordingly, we made our way down to the Opera House and met up with the two Freehills lawyers at midnight. We went around behind the Opera House to the wharf and there boarded a high speed charter vessel which was to take us to Port Botany under cover of darkness.

Once we were aboard the charter boat, we met our fellow passengers in addition to the two Freehills lawyers:

• the captain and his first mate who appeared to me to be quite terrified at the prospect of taking us to Port Botany; 

• a former British SAS officer who had been hired by Corrigan to provide advice on security issues; and 

• a cameraman whose role it was to capture video footage of the boycott activity.

We set sail for Port Botany. The former British SAS officer surprisingly decided to take a nap, presumably to prepare himself for the tasks ahead. The Freehills lawyers went up to the deck to keep an eye out for any MUA any vessels which may be trying to intercept us.

Meanwhile I, the cameraman, and the Assistant Director decided to avail ourselves of the hospitality on the charter vessel. After a couple of beers and bourbons, we were summoned onto the deck by the Freehills lawyers. They explained to us that the MUA had set up a makeshift flotilla of small vessels in Port Botany whose role it was to intercept any vessels seeking to get in behind the picket lines from the open sea. I admitted that I could not see any of these MUA vessels because it was so dark. The reason I could not see these vessels was because they had all turned off their lights so they would not be spotted by people like us.

However, the Freehills lawyers had come prepared – they had a pair of night vision binoculars. I was so excited at the prospect trying out a pair of night vision binoculars, that I grabbed the pair from the Freehills lawyer’s neck without first giving him an opportunity to take the strap off. After apologising for accidentally garrotting him, I was able to make out a few small MUA crewed vessels sailing around Port Botany looking for intruders.

I was curious why the people on these vessels appeared unable to see us. The captain explained to me that the reason they could not see us was because he had also decided to leave his lights off. He was worried that his vessel may be identified by the MUA, which may subsequently result in recriminations and reprisals.

Fortunately, the charter vessel we were in was much more powerful and manoeuvrable than the small MUA vessels which were trying to intercept us, so we were able to navigate our way through the flotilla without incident. One vessel was able to get quite close to us, but all the person on board could do was hurl a few insults at us before we left him in our wake.

Unfortunately, when we arrived at Port Botany the captain, in his haste to get away, dropped us off at the wrong location. Instead of letting us off on the Patrick’s wharf, he let us off on a small wharf which was not actually attached to the Patrick’s wharf. Accordingly, we had to get across a fairly large gap between the place where we had been dropped off and the Patrick wharf without falling into a dark hole which appeared to be four or five metres deep. What made our task more difficult was that it at about 1am in the morning and pitch dark.

One of the security guards on the Patrick’s wharf had been expecting us. When he realised we were stranded on the wrong side of the wharf, he went and retrieved a ladder which he put over the gap. The idea was that we would climb across the ladder to get to the correct side of the wharf.

I climbed across quite slowly. When I got to the other side, I thought I should assist the next person to come across by holding down the end of the ladder to make sure it was secure. Foolishly, rather than putting my foot on the ladder where it was resting on the wharf, I put my foot on the ladder at the point where it overhung the wharf. The result was that the ladder shot up in the air just as the former British SAS officer was seeking to cross the ladder. Unfortunately, it struck him between the legs.

Even though I immediately apologised, he did not look very impressed by what I had done. I thought for a moment whether it might be safer for me if he did not actually get across to the Patrick wharf. Accordingly, I gave a fleeting thought to pulling the ladder across to my side and leaving him stranded on the other side. I decided against this strategy as it would no doubt have just have antagonised him even more.

Embedded behind the picket lines

Once we had all made it over to the correct side of the wharf, we travelled to the main office to meet the manager in charge of security. On entering the main office, we noticed that all the offices had been trashed – papers were all over the floor and furniture had been smashed or pushed over. We asked what the Freehills lawyers what had happened. They told us that the MUA staff had trashed most of the offices when they were removed from the premises the previous Tuesday.

We met the manager in charge of security at Port Botany, who explained the safety rules. We were to go nowhere outside the main office without being escorted by at least one security guard and a guard dog. He also advised us that he could not be responsible for our safety if we did not follow this direction.

The site was occupied by about 15 security guards and about half a dozen Doberman or German shepherd guard dogs. I must admit they looked like a very tough lot. Contrary to what I had expected, they did not walk around with balaclavas.

We immediately asked to do a tour of the facility. We left the office with a couple of security guards and guard dog. It must have been about 2am by the time we started inspecting the facility.

The first thing we noticed was that there was a small group of protestors outside the facility. On seeing us, these protestors decided to follow us around the facility from the other side of the fence.

This small band of protesters initially hurled a variety of insults at us, which did not phase us very much. However, when we got a little bit too close to the perimeter fence a hail of rocks of various sizes rained down on us. We quickly retreated to a safer distance.

I noticed that my Assistant Director appeared to be picking up one of the recently launched projectiles. I worked out that it may have been his intent to send the projectile back to its source. I immediately stopped him and explained that while my knowledge of the Australian Public Service Code of Conduct was fairly sketchy, I was pretty sure it did not permit us to throw rocks at the picketers, even if they had thrown rocks at us first.

I also noticed a small red light flickering around on our head and torsos. We were quite puzzled at what this red light was. The security guard explained to us that it was the infrared light from a laser pointer. He said that the picketers had brought some of these laser pointers to the docks to try to scare the guards at night into believed that the light was in fact the infrared sight on a high powered rifle.

I had decided before heading to Port Botany not to bother carrying a note book as in pitch darkness and being on the move it would have been impossible to take written notes. Rather I brought a small hand held tape recorder, which I could use to make audio recordings of any observations or potential witness interviews. I decided to tape a few examples of the abuse being hurled at us by protestors so that I would be able to give the staff back at the ACCC some idea of what it was like at the facility.

After doing our tour, we spent some time thinking about the likely course of events later that day when the Australian Endeavour arrived. We knew that there were three possible places where the MUA could take action to impede the Australian Endeavour arriving and being unloaded- either:

(a) the MUA staff on the Australian Endeavour may do something to prevent that vessel coming into Port Botany; 

(b) the MUA staff on the tugboats may refuse to bring the Australian Endeavour into Port Botany; and/or 

(c) the picket line may prevent the buses of non-union labour from getting through the picket lines.

Given that we knew that the Australian Endeavour was owned by the Commonwealth Government, we doubted that the MUA would be able to do much to stop the vessel from coming into the port.

We thought the main risk was that the MUA may withdraw towage services. It was for this reason that we had sent the MUA yet another warning letter the day before cautioning them against withdrawing towage services to the Australian Endeavour.

As morning approached, there was a great degree of anticipation. The picket line at the entrance to the facility had grown so that it was now more than 1000 picketers. The picketers started chanting and hurling insults at anybody they could see inside the facility, including us. It was apparent to us that the picket line was getting to such a size that the few police outside the facility would not be able to do anything to restrain its actions. That was assuming that they had been of a mind to do so, which they clearly were not.

Word got to us that the MUA crews on the tugboats had refused to bring the Australian Endeavour into port. The MUA’s alleged concern had been with safety – namely, that the tugboat crews were at risk from the security guards and guard dogs. Accordingly, the Australian Endeavour had to wait off the coast for a number of hours until a solution could be worked out.

I remember the Managing Director of Adsteam, which owned the tugboats, arriving at the MUA office to try to convince the MUA to change their decision about providing towage services. After a number of hours, he had brokered a deal with the MUA, whereby they agreed to provide the towage services. The MUA would provide towage services on condition that the security personnel and dogs were placed in a secure area well away from the tugboat crew prior to the tugs arriving.

We went out to the loading area of the wharf to await the arrival of the Australian Endeavour. By this time, I had been working for more than 24 hours straight and I was incredibly tired. I had been sitting on the wharf for a short time, when I closed my eyes for a couple of seconds. Before I knew it, I was fast asleep on the middle of the wharf near one of the large cranes. I was woken up by the sound of helicopters above me. I quickly realised that the helicopters were from various televisions networks and that a number of them had cameramen hanging out of the helicopters to film activity (and potentially inactivity) on the wharf.

I realised that it would have been very embarrassing not only for me but also for the ACCC and for Professor Fels if the evening news had featured images of one of the ACCC’s apparently fearless and intrepid investigators lying flat on his back asleep on the wharf. Accordingly, I quickly woke myself up and tried to look as fearless and intrepid as I could.