Sue Bolton
Rob Stary is a leading criminal defence lawyer in Victoria and an outspoken defender of civil liberties. He has defended many victims of the federal and state governments' anti-worker and "anti-terror" laws, including the former Victorian secretary of the Australian Manufacturing Workers Union Craig Johnston; the first Victorian charged under federal "anti-terror" laws, Jack Thomas; eight of the 23 Muslim men currently detained without trial in Barwon Prison as "terror suspects", and Construction, Forestry, Mining and Energy Union (CFMEU) occupational health and safety representative Brodene Wardley.
On the basis of his wide experience, Stary argues that the new "anti-terrorism" and industrial relations laws are strongly interlinked in their criminalisation of political and industrial dissent. He spoke to Green Left Weekly about how the Howard government's industrial relations legislation, in particular the Building and Construction Industry Improvement Bill 2005, is allowing building workers and unionists to be treated like suspected terrorists.
On September 23, a minibus containing 12 workers at Roche Mining's sand mining and processing plant near Hamilton in western Victoria was nearly hit by a train at a level crossing located between the construction site and the workers' camp site. The crossing was uncontrolled, had no warning lights, is used more than 1000 times per day and has poor visibility.
The site workers immediately called a stop-work meeting to discuss the number of near misses and the delays in fixing the problem. They believed that sooner or later someone would be killed and decided that the only way to force the company to take the issue seriously was to withdraw their labour.
The company took the unions involved to the Australian Industrial Relations Commission, which negotiated an agreement that if those responsible for the rail crossing met to resolve the safety issues the workers would return to work. The result was immediate improvements to the crossing, including continuously flashing signs, and the workers returned to work.
Although the issue seemed to have been resolved to the satisfaction of both Roche Mining and the workers, the Australian Building and Construction Commission (ABCC) task force, established under the government's new building industry legislation, is now trying to prove that the unions took illegal industrial action and therefore should pay damages and fines totalling millions of dollars. It is interviewing all safety representatives and union delegates on the site, and demanding that the unions involved hand over all paperwork, including diaries, relating to the dispute. Under the new law, anyone refusing to comply with the ABCC's demands faces six months' jail.
Wardley, a single mother of three, is the CFMEU's occupational health and safety representative at the plant. She received a letter from the task force saying that she would be jailed if she did not appear before a task force hearing in Portland in early May to answer questions about her workmates' industrial action last September.
Wardley was subjected to nearly four hours of interrogation by the task force. Stary was present as her lawyer.
"The thing that struck me", Stary said about the investigation, "was that it had a criminal overtone to it. If the person who was the subject of the investigation did not answer questions, they'd be the subject of criminal penalty, and if they were said to be 'evasive' or 'obstructive', they'd also face a criminal penalty of six months' imprisonment.
"I was flabbergasted by the threat of the state coming down on people who had a legitimate grievance, who were involved in an industrial dispute."
Stary is used to dealing with cases involving serious criminal offenses. He noted: "If one of the workers on the site was charged with armed robbery or with murder they'd have more rights. They'd have a right against self-incrimination, a right to refuse to answer questions and they'd have the presumption of innocence.
"Whereas, if you're a union delegate who's trying to protect the interests of the workers on site and you refuse to cooperate with the authorities, you're going to be worse off. It really struck me how unfair it was. And for ordinary working people who are not often exposed to the criminal justice system, it's pretty intimidating."
Wardley's interrogation was closed to all except the five interrogators and her lawyer. The secrecy provisions of the ABCC hearing were "incredible", Stary explained. "If they're conducting an inquiry into industrial action, why do they need to make it secret? Why do they have to have this sort of star chamber?
"There was no useful or proper purpose for having these things done secretly. They do it because it has an intimidatory effect on the person giving evidence.
"They should be completely transparent. I can't justify such secrecy in an anti-terrorism case or in any ASIO investigation, and if I can't justify it then, I certainly could not justify it for people involved in an industrial dispute."
Stary explained that under the new law he is "not allowed to disclose anything that was said during the hearing, so I want to talk about a hypothetical example. Hypothetically, they're going to try to find out who might have initiated the 'unlawful' industrial stoppage.
"It's clear that they assume that all industrial action comes from either the union organiser, or a high-ranking shop steward or delegate. They just can't conceive that in a democratic process someone from the floor can initiate action."
Stary pointed out one of the most anti-democratic aspects of the ABCC's operations: "It's an offence punishable by imprisonment if you disclose any of the content of the investigation (you might as well call it an interrogation). You're not permitted to talk about it with any other person — not your union organiser, not any other union official, not your workmates, not your partner, nobody. They're looking for some sort of scapegoat and they'd be keen to prosecute someone for breaking the secrecy.
"It frightens me that these secrecy provisions are in this legislation. They only occur in a few other circumstances — in ASIO counter-terrorism investigations and in the Australian Crime Commission (ACC) when they're looking at underworld killings, or serious drug importation or corrupt police. They don't apply even in Australian Federal Police investigations.
"These sorts of laws [requiring secrecy under threat of jail] have been adapted from ASIO legislation and the ACC, yet no-one who's involved in any criminal conduct is involved in industrial disputes."
Stary is concerned that "the labour movement hasn't done enough to resist this. These are people's basic civil rights, rights of association and freedom of speech and all the other core rights that you're supposed to hold close to your heart.
"This draconian legislation is really designed to try and break the building industry unions. Once you capitulate to this in the building industry [the attack] will increase, it will extend to textile workers and car workers, and so on."
While Stary believes that a broader campaign to overturn the new laws is required, he advises workers and unions to protect themselves in the meantime. "First, you shouldn't keep a record of anything. Secondly, you shouldn't allow the organisers or identifiable delegates to move motions. They've got to come from the shop floor in an unidentifiable way."
"Unions are not involved in injuring people or damaging property. They're invariably involved in occupational health and safety issues and to treat them as terror suspects is a disgrace", he concluded.
From Green Left Weekly, June 14, 2006.
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