There has been more than some argument about the legal rights of the various parties on the Australian waterfront but there exists a more fundamental set of rights, human rights or civil liberties. Unfortunately, these are not well defined and objectivity is neither easily come by nor readily accepted.
The Australian waterfront is bedevilled by two monopolies -- that of the Maritime Union of Australia which exercises rigid control over the supply of labour and that of the stevedoring companies Patrick and P&O Ports which control the supply of services to ship-owners. The one is maintained by the Federal award system; the other by MUA dominated closed shop and by State governments which have leased the available wharf space for ridiculously long terms. The several statutes, awards and leases are the law, but their relationship to justice and efficiency is problematical. As is always and often the case, wherever what is lawful offends justice or efficiency, the law is broken, bent and avoided, and sophistry commands a premium.
Although not my favourite document, the Universal Declaration of Human Rights, adopted by the United Nations and ratified by Australia is the best criterion of what might be regarded as the relevant inherent rights that I can think of. It is subject to too many conflicting interpretations; specifies several "rights" that can be no more than good intentions because they can neither be held against all the world nor against identifiable persons; and it is so given to waffle that it needs to state that no right may be interpreted as allowing acts destroying any of the other rights. Nevertheless it is on the side of justice, and most ambiguities can be avoided by preferring the more specific requirements to the more general.
Article 3 appears in some form in most Bills of Rights. That "Everyone has the right to ... security of person" is not controversial. The consequent obligation is clear; and it does constrain "all the world". It is thus a genuine civil liberty that obliges everyone (alleged scab or MUA stalwart) not to injure or threaten to injure anyone (alleged scab or MUA stalwart).
Nevertheless, Patrick senior staff claim to fear physical retribution. Further, I am told of a conversation that took place far from the picket lines between a Patrick executive and a stevedore who is an MUA member. The executive told the stevedore that there was job for him if he wanted it only to be told in reply that the (ex)employee dare not take the job because not only he but his wife children would not be safe. Of course, I cannot swear by this story but its source is such that I have little doubt about its veracity. It also matches others that came my way in my political days, including one (involving another union) in which threats were carried out. If people really do fear that their persons and those of their families are not secure, then Article 3 is breached.
Article 7 reads "All are ... entitled to equal protection of the law". Here the relevant obligation is upon those who administer and enforce it, but practical difficulties arise where the laws conflict, are too complex to be understand or the authorities are reluctant to commit the necessary resources. What should be done if police numbers are insufficient to give protection? Calling on the armed services, as Hawke did in the pilots' strike, has a high attendant price. The Australian Competition and Consumer Commission is obliged to investigate the MUA for attempting to restrain trade by, among other things, colluding with the International Transport Federation. It is also obliged to investigate Patrick and P&O over an alleged agreement not to poach each other's custom during the dispute and it is currently investigating the Patrick lease to the farmers' companies. In what order does it use its limited resources? What should happen when the courts place orders on parties who do not have financial resources to carry them out? The complexities emphasise the limitations of declarations of "rights", nevertheless, Article 7 expresses a principle that it would be very wrong to ignore.
Article 20(1) says: "Everyone has the right to freedom of peaceful assembly and association". Is an assembly that shouts abuse peaceful? Probably. But one that offers credible threats and blockades places of lawful business is surely not. There can be little doubt, however, that the Declaration intends to protect picketers' rights to advise, admonish, chant and wave placards while not obstructing. I believe Justice Beach, therefore, erred in terms of the UDHR when he ordered even MUA picketers not to protest on the footpaths near the container terminals. This Article protects people's right to join a union of their choice, but so does the Workplace Relations Act and, in spite of the posturing, freedom of association is an issue only because the MUA will not let its members sign individual contracts or work alongside non-members.
Article 20(2) affirms that "Nobody may be compelled to belong to an organisation". At one level the dispute is about just this: the rights of waterfront workers not to join the MUA. In this the Howard Government is not blameless. Had it not caved in to the Democrats by breaking its election undertaking to repeal the "conveniently belong to" rule that requires workers to be represented by their assigned union, the monopoly status of the MUA would have been much reduced. Both the conveniently-belong-to rule and the aggressive behaviour of the MUA would seem to offend this Article and also 23(4) which states that "Everyone has the right to form ... trade unions". Literally, workers in Australia do have the right to form unions but there is little point when only the officially sanctioned unions are officially recognised.
Finally, Article 23(1) asserts that "Everyone has the right to ... free choice of employment ..." On the Australian wharves, where jobs are reserved for MUA members and then the sons of MUA members, they haven't.
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