A tale of two towns: industrial pickets, police practices and judicial review.
This article purports to recount neither the protracted 1992 Associated Pulp and Paper Mill (APPM) industrial dispute at Burnie, Tasmania, nor the short-lived Lyttelton (New Zealand) wharf picket in late 1999 when local activist Christine Clarke suffered fatal injuries after being run over by a four wheel drive motor vehicle. (1) The purpose is to explore those factors that limited violence at these two disputes, the significance of the policing-union rapport and the potential ramifications of legal judgements. Although there are marked differences between the Burnie and Lyttelton industrial disputes, the similarities of police and picketer interaction are significant.
In both Australia and New Zealand, unionists have usually accepted some police involvement during the processes of protracted industrial disputes, but police tactics have been subjected to considerable criticism. The history of the policing of industrial disputes in Australia covers a motley and erratic pattern of intermittent violence and suppression. Employers customarily relied on the police, the apparatus of the state, to assist their plants to remain accessible and to protect staff and strike-breakers. Although there was no formulated policy of repression against strikers and although most industrial disputes have not involved police intervention, whenever major and prolonged conflict between worker and police occurred on the Australian industrial front, police actions were usually uncompromising, ruthless and legalistic. (2)
As the coercive arm and guardian of the state, police in Australia historically at times adopted aggressive and bellicose tactics that escalated the tensions and potential violence during industrial conflict. This was so at Clunes in Victoria in 1873; at Adamson in the Hunter Valley, north of Sydney in 1888; at Townsville in Northern Queensland in 1919; at Rothbury in the Hunter Valley in 1929-30, and at Korumburra in Victoria in 1937. (3) When political and ideological clashes between capital and labour were rife amidst the communist hysteria of the 1920s, police saw themselves as defenders of freedom and enforcers of legitimate power against waterside workers and coal-miners in particular. (4) A few notorious examples of police violence include: 'Black Baton Friday' on 2 February 1912 in Brisbane; 'Bloody Sunday', a pitched battle at Fremantle wharf on 4 May 1919; (5) the shooting of Alan Whittaker at Port Melbourne on 2 November 1928; the NSW police 'flying squad' terrorising the northern NSW coal-mining communities in late 1929 and early 1930, (6) and the 1948 'St. Patrick's Day bash' in Brisbane. For decades during protracted disputation, belligerent police excesses continued unchecked, unchanged and undeterred. (7)
Although New Zealand Police, a strongly centralised, unitary organisation, has always maintained a traditional claim to constabulary independence, police handling of early industrial disputation, limited in number by comparison with Australia, was often partisan and politically at the behest of governments. During the twentieth century, the generally benign policing of tranquil New Zealand society was reflected in what Graeme Dunstall describes as 'the meagre history of urban collective violence'. (8) Although not plagued by violent industrial disputes, a couple of major disputes, especially on the wharves, brought about clashes between police and strikers. During the Waihi Strike of 1912, strike-breaking labour was emboldened by increases in police numbers and the direct involvement of Commissioner Cullen. The violent 1913 general strike was another massive victory for the authorities 'determined to destroy its class enemies'. (9)
Reflective of police pragmatism and the general discipline of the waterside workers, policing of the 151 days of the 1951 waterfront lockout was generally low-key by comparison with that of the 1913 general strike. (10) As the wharf lockout continued, policing, especially in Auckland, became harsher and culminated in baton-wielding police on 'Bloody Friday'. Chief Inspector S.I. Young's historical account provides a caveat against any blanket depiction of direct repressive policing. Generally, local police were utilised with 'outsiders' held in reserve. Long-established 'personal relationships and trust' and the knowledge that both police and unions had 'organised leadership' tempered the overall crisis. (11)
Contemporary New Zealand police (like their state counterparts in Australia) are instructed to follow a minimum arrest policy, one that does not reduce police numbers at the confrontation and one that appreciates that police cannot move or arrest all people technically breaching a law during a mass blockade or protest. (12) Much 'policing' of picketers is conducted by union organisers and picket captains themselves. Direction to New Zealand unionists and supporters aimed at avoiding industrial torts includes 'no alcohol or drugs, no abusive language; no sabotage or intentional damage to property'. Clear union guidelines demand discipline, and most organisers are determined to oust 'hot-heads'. (13)
The Industrial Life of Burnie and Lyttelton
A sense of both place and community is important for locating the policing of the Burnie and the Lyttelton disputes. APPM, colloquially known as 'The Pulp', dominated the industrial, provincial town of Burnie which had been a company town since the mill's opening in 1936. Relations between the benevolent APPM management and unions at the Burnie mill had historically been cordial, in accord with Tasmanian history of limited industrial disputation and very few protracted strikes. (14)
However, APPM, which dominated the north-west economy, was part of a declining pulp and paper industry in Tasmania. It was taken over by North Broken Hill Holdings Ltd (NBH) in 1984, with its headquarters and power-brokers in Melbourne. The locally based and cooperative style of APPM management had been replaced by the corporate parent company, North Broken Hill-Peko, determined to make its Forestry and Paper Division competitive on the world market. NBH-Peko, with its aggressive managerial culture, had achieved work-place reforms without mining union participation at Robe River in 1986 when police facilitated access for those willing to work during strike action. For NBH-Peko, the Burnie workforce appeared too comfortable, was restructuring too slowly and its plethora of 11 unions was impeding rapid change. Unionists, however, were fearful of possible job losses. (15) Since 1989, the Burnie workforce claimed a significant contribution to restructuring as it was gradually adjusting to retraining, multi-skilling, consultative committees, increasing efficiency and productivity demands and the acceptance of voluntary redundancy. (The APPM workforce significantly declined 12.8 per cent from 1987 to 1992.) (16)
In 1992, Burnie's population was 23,000 and 'The Pulp' was the district's largest employer of 1,100 people, including some third generation members of local families. (17) The company remained adamant that there was no place for the unions in non-award talks and maintained its 'right to manage' philosophy in a climate of restructuring and enterprise bargaining. The company's work contract was to be directly between company and employee; not company and employee via a third party, the union. (18) On 3 March 1992, APPM's Chief Executive Bill Paisley, indicating APPM's fight for survival, announced that the company would unilaterally withdraw above-award conditions from the beginning of April. (19) In April and May, relations deteriorated between management and the unions; the dispute escalated with NBH's hardline tactics and the determined resistance of local unionists; and the conflict developed state and national industrial significance. (20)
Lyttelton, also a port town, was isolated and distant from Christchurch until a road tunnel was completed through the Port Hills in 1964. Nestled between mountains and sea, Lyttelton (population 3,000) has produced a close-knit community, traditionally supportive of its local stevedores during industrial conflict. The Lyttelton Port Company (LPC), 68 per cent owned by the Christchurch City Council, remains the town's main employer and Lyttelton harbour, Christchurch's port, remains one of the most productive in New Zealand with a steadily rising volume of cargo and operating 24 hours a day. (21) In 1971, 660 wharfies worked the Lyttelton harbour; by 1999, this had been reduced to less than 150 as mechanisation and improved technology facilitated the handling of greater volumes of cargo.
Lyttelton has had its share of industrial conflict but hostility between police and strikers has been limited. Police intelligence indicates that every year since 1991 (except 1994), Lyttelton experienced a significant industrial protest on the wharves, and arrests and scuffles had sometimes occurred. (22) In June 1995, the ENZA Apple and Pear company employed 42 casuals from Nelson to load and unload cargo on the Stevens. These casuals received a hostile reception from locals, and a large police presence of about 70 officers from the Canterbury district descended on the Lyttelton port. LPC chief executive and managing director, David Viles, read the 1980 Trespass Act to the crowd, thereby terminating the direct industrial action. Union officials, conscious that the law was on the employer's side as the picketing was on port property, advised members to withdraw rather than be arrested by the assembled police. (23) In the late 1990s, the LPC headed by David Viles had been isolating itself from sections of the Lyttelton community as tensions surfaced between town and port company. (24)
Local Picketing and Local Community Policing
The picket line symbolises resistance and struggle against industrial power. The picket harnesses unity and purpose and captivates media attention. The sustained three weeks of Burnie picketing and the short-lived one-and-a-half days of Lyttelton picketing were characterised by union self-policing and general restraint.
The bitter industrial strife at Burnie escalated into a volatile strike on 12 May 1992, when pickets were established and surrounded the mill, covering all 11 entry points (pickets remained until 11 June). A full-scale strike and shutdown caused the cessation of mill production. The aggressive company, prepared for a long and bitter conflict, failed to appreciate that Burnie was a tightly knit and well-organised community, unlike the isolated and artificial Robe River frontier town where NBH-Peko and the Western Australia Police had exercised their muscles against the workers in 1986. APPM workers received substantial support though community organisations. Throughout much of May, the mill management orchestrated attempts to break the picket lines, including the driving of trucks by management to picket enclaves, the ordering of apprentices to work at the strike-bound plant and threatening to sack workers who failed to report for duty inside the mill. (25) The dilemma for APPM management was how to gain entry into the mill for any vehicles or willing workers.
Picketers quickly established a routine in the 'cold rain, bitter winds' of wintry north-west Tasmania. Picket captains were carefully selected; a policy of non-violence was enshrined; agitators were moved on; hygiene and cleanliness were emphasised; and alcohol was banned. According to the secretary of the Federated Engine Drivers and Firemens Association (FEDFA), Mike Grey, many of the picket captains were ex-serviceman, who, 'under times of stress could accept an order and carry it out and would not get caught up with the hype of things that were happening'. (26) The police left the onus on the union officials to control their own people: 'we set the ground rules of what they could and couldn't do ... but then as it started to build up it got a bit emotional on both sides'. (27) Hall and de Lint's study of Canadian policing of labour unrest reveals that police gradually realised that unions could control their own members and that close policing was 'not only unnecessary, but frequently harmful'. (28)
1992 was not just the unions' dispute; it was Burnie's. The picketers ate donated pies and warmed themselves with donated firewood. With support from the three conservative Tasmanian dailies (Burnie Advocate, Launceston Examiner and Hobart Mercury), the APPM picketers, many of whom were long-standing members of the local community, were not a marginalised group. The activities of the Support Pulpmill Employees Committee, which evolved from a women's welfare support group to an assertive industrial lobbyist, revealed the empathy for the strikers and the militancy and resolution of many townspeople.
The community policing approach at Burnie adopted consultation and compromise rather than confrontation and coercion. Distinctively, local police ignored NBH-Peko's demands to remove the picketers, much to the strategic advantage of picketing mill-workers. As he had no intention of ordering the picket to be broken, Inspector Fox, the officer in-charge, was comfortable at any time 'to walk up and down the picket line and say hello'. There was no grand policing strategy; situations were pragmatically encountered on a daily basis as they arose. (29)
Inspector Fox's philosophy of policing remained consistent throughout the dispute. Essentially 'free' to determine local police policy and priorities, he saw his duty as foremost one of preserving the peace in the Burnie district; the strategy was low-key and non-confrontationalist. The Inspector publicly stated that his 'intention was to intervene only when a transgression of State laws made it necessary' and regularly insisted when interviewed that he would utilise his 'discretionary powers in all circumstances where needed'. (30) For the dispute's duration, Fox admitted: 'I simply contained the situation. I didn't solve the situation'. This meant both limited arrests and limited police intervention. He maintained a co-operative liaison with the picketers and union leaders throughout the dispute. Fox met regularly with union leaders, 'thus creating for myself, albeit unconsciously at that time, a role as mediator between the opposing camps'. (31) He saw his handling of the Burnie pickets in accord with philosophical and evolutionary changes in policing over the century from force to service. (32) However, events had soured the relationship between police and mill management. (33)
If circumstances dictated aggressive, paramilitary policing, the cohesive nature of a community like Burnie could be jeopardised and police-community relations diminished. The bitter conflict at the 'Pulp' challenged Burnie's policing capacity to enforce the law and safeguard community harmony. On night patrol, Senior-Sergeant Timmerman revealed that police would 'have a cup of tea' at the picket line and engage in 'small talk'. The community policing ethos emerges strongly:
What that did was put a human face on the police, and from the police point of view put a human face on the picketers. You weren't just dealing with obstacles, you were dealing with people. (34)
The human face of policing has rarely been the traditional posture of police during volatile industrial conflicts. As community policing practitioners, Burnie police were looking to the picketers and their supporters to be a self-disciplined body, encouraging safety and order on the picket lines around the plant.
Although police in both the Australian states and New Zealand belong to hierarchical, centralised structures empowered to issue standing orders and directions, police 'on the spot' by the nature of their work and delegated functions often wield considerable capacity for independent decision-making. Inspector Fox at Burnie and Sergeant Stace at Lyttelton had the full backing of their hierarchies in the two disputes. According to Reiner's British research, police peacekeeping strategy of public order has not been so much the result of specific policing policy but rather the approach of those police on the spot who have valued the course of minimum intervention. (35)
Despite the signing of a new collective contract on 31 July 1999 between the LPC and the three waterfront unions, the company, three weeks later, called for tenders for its coal operation under a new arrangement with a west coast-based contractor to load coal at the port instead of the local waterside workers. In defiance of the Lyttelton Port Authority, picket lines were established at the two entries to the port on 28 December 1999. Police staff in Lyttelton numbered a dozen but only a couple were available for monitoring the pickets. On occasions there were three police members in attendance at the picket, but for much of the relatively quiet Lyttelton dispute, a lone policeman surveyed the picketing.
Sergeant Gil Stace, the local police leader, knew all the union organisers and port company officials. He had become aware of the intended picketing on 27 December when he met union organisers who advised of their plans. (36) Stace accepted union plans to stop traffic for a maximum of five minutes: 'we agreed that allowed them to make their point and not unduly disrupt'. (37) This informal agreement was acceptable to the union organisers as well as the Christchurch police hierarchy who 'agreed that a low-key approach to monitor the situation was the best course of action'. (38) This contentious agreement between police and unionists, central to subsequent legal arguments, irked the LPC as company management had not been consulted about it. In law, the five-minute delay technically constituted a tort of obstruction but police were not prepared to act.
Sergeant Stace, concerned about the practicalities of the picketing, decided to manage the picketing in a low-key manner in accordance with New Zealand guidelines for policing protest. The picket on 28 December was orderly and motorists experienced 'very minor inconvenience'. Motorists were briefly delayed, rather than detained, as they could always do a 'u-turn' and leave. Stace determined that obstructing a road was a minor offence that was rarely prosecuted, and that the two picket lines were across public roads that only provided access to port company land and that did not constitute public thoroughfares. Stace was condoning a breach of the law, albeit a minor one. He argued that 'it was the lesser of the evils' since the delay to motorists was brief. As he was liaising with both parties and as he was actually playing a mediating role in the actual dispute, Stace was aware of considerable progress towards settling the localised dispute. (39)
Gil Stace, convinced that the picketers formed a self-disciplined body, remained 'confident in the union officials to police the pickets in line with the agreement that I had with them'. (40) However, a subsequent internal police inquiry concluded that although the national and branch president of the Waterside Workers Union (WWU) Les Wells 'did have some control over them (picketers), that control was not always evident and not always possible'. (41) There were a couple of dangerous incidents on day one: a Canadian driver tried to force her way through the picket line and police attended a few minor scuffles between picketers and impatient motorists. Union leaders claimed that they played their part in the arrangement with Sergeant Stace: 'It was low key stuff and if we held anyone up too much, Gil would give us a wave ... we'd shoot 'em through'. Stace feared that if police attempted to prevent the picketers from detaining the motorists, the picketers would implement 'sit-down' tactics that would effectively detain motorists considerably longer and that would make the picketers extremely difficult for police to remove. (42) As police were not involved in the escorting of any non-union labour, police assessed the probability of violence as relatively low.
Police and union leaders, though not company management, generally agreed about the peaceful nature of the picket. Union leader Les Wells applauded the police as being 'absolutely brilliant' during the dispute and stated that Stace actually 'played a major role' in solving the industrial dispute. (43) From a police perspective, Sergeant Stace described the picket as 'good-natured and friendly, no difficulties at all'. (44) From the police viewpoint, there was little law to enforce and insufficient offences committed to warrant a violent affray. The Lyttelton industrial dispute was small and localised; union organisers, responsive to police requests, knew that their picketing time was limited; and local police knew that industrial settlement was approaching. Like any industrial picket, however, the situation was volatile and unpredictable.
Ironically, Christine Clarke, a non-unionist and social activist who was opposing the LPC's attempt to introduce contract labour at the expense of local workers, died by partaking in a 'peaceful, calm, orderly, well-organised picket'. (45) At noon on day two at the Gladstone Quay picket, Clarke was struck and run over by a 1.8 tonne Toyota Landcruiser driven by Derek Powell, the director of a pleasure boat company. Seconds before the incident, about eight rowdy picketers had blocked the forward passage of the Toyota. (46) Clarke died two days later and subsequently Powell twice stood trial for manslaughter. After the original, ten-day trial at the Christchurch High Court, the jury convicted Powell of manslaughter, but Justice Panckhurst, appearing to disagree with the jury's verdict, imposed a nine-month term of periodic detention and disqualified Powell from driving for two years. As the judge had proportioned the blame for Clarke's death between Powell, the police and 'aggressive' picketers, Derek Powell, as expected, was acquitted at re-trial two years later. (47)
The non-interventionist and non-confrontational tactics of the police received the wrath of both companies in these two disputes. At Burnie, police reticence to forcefully remove the picketers was a major obstacle to NBH-Peko proceeding with their reforms, including the denial of union representation of APPM workers. By failing to break the picket, police were giving tacit support and pseudo-legitimacy to union rights to organise and maintain a 24-hour picket around the mill's six-and-a-half kilometre perimeter. Tensions increased with a series of ugly incidents, allegations and counter-allegations of intimidation, and renewed company pressure on police to intercede. For three weeks the human wall around the perimeter of the 'Pulp' had become a physical symbol of union resolve to remain a viable part of the mill's workplace affairs and reforms.
APPM's mainland parent company had lost patience with the union picketers and the police. Decisively, on 23 May 1992, the APPM management, in a surprise and unprecedented move, served a writ of mandamus (48) on the Tasmanian Police Commissioner, John Johnson, which thereby ordered a public official or body to perform a duty 'to preserve peace and good order' by preventing any breach of the peace or criminal offence. APPM management claimed that police failed to protect public property, to provide truck access and to assist workers who wished to go about their normal, lawful business, even to the extent of crossing picket lines. (49) The writ confirmed APPM's hardline stance against negotiation and challenged police operational independence. Union reaction to the company's drastic legal action was predictably hostile. Tasmanian Trades and Labour Council secretary, Jim Bacon, claimed that it was obvious that APPM's legal action was dictating that 'police have not been tough enough and that the police force should just be a private army for APPM'. (50)
The three-day hearing in the Supreme Court before Justice Wright (51) highlighted the bitter, adversarial nature of the employer-union conflict and the questionable nature of the Tasmania Police approach. With NBH-Peko pitted against the Tasmania Police, Inspector Fox, in evidence, contended that the pickets were physically affecting entry only to the plant and therefore were creating no problems to the town. He declared that the picketers had been non-violent and well controlled by the union leaders. Fox affirmed that the picketers generally complied with police directions through the union leaders or picket captains, except they failed to permit vehicular access and egress. (52) The obstruction of vehicles was a major grievance that company management voiced against the union pickets.
At Lyttelton, the low-key policing strategy necessitated some interference to the company's business as the picketing slowed and hampered the transportation of goods to and from the port, although it caused very limited interference to the general public. LPC management did not accept the non-confrontational police tactics on the wharf and demanded police action. The company, not consulted on the pragmatic 'five minute delay' arrangement between police and the local WWU organisers, deplored the police's agreement with the union picketers, whose obstruction was viewed as illegal. Stace felt 'considerable pressure' to clear the pickets because the company wanted the police 'to enforce the letter of the law and open the roadway'. (53) The company 'would not have been unhappy if we had forced the hand'; meaning that the LPC wanted decisive police intervention. (54) It was alleged, although unsubstantiated, that the head of the LPC, David Viles, wrote a letter to the Police Commissioner complaining about Stace's inactivity during the two-day dispute. (55)
The policing of the two disputes placed peace-keeping and public safety above the enforcement of law; the latter would have assisted commercial enterprises to conduct their business unhindered. Police are obliged neither to protect a business interest at any cost nor to placate people's right to protest at any cost. (56) Judicial decisions have generally supported the legal view that picketing impedes and constrains business unfairly. The law is also inclined to subordinate political freedoms to demands for law and order. Although there are no laws specifically prohibiting picketing, 'they are subject to the laws necessary for the maintenance of public order', such as obstruction, besetting, harassment, intimidation, failing to obey the lawful direction of a police officer, traffic violations and assault. (57) The employer can opt to pursue civil litigation to restrain unions from any unlawful and disruptive action. Interference with contractual relations, nuisance, intimidation, trespass and harm to business can constitute torts and possible claims for damages. (58)
The law in relation to peaceful and passive picketing, an industrial tactic directed at disrupting work and publicising the unionists' demands, is ambiguous. (59) The Bombo cases (New South Wales) highlighted the absence of a clearly defined right of peaceful and passive picketing and ultimately threatened the right of any individual or group to picket peacefully. (60) Since the 1930s, besetting provisions have been utilised to prosecute union officials accused of blocking access to workplaces. In mid-October 1997, Justice Bruce in the Coal and Allied Operations case (the struggle between Rio Tinto and unionists at the Hunter Valley No.1 Mine) determined that the picket, hindering access to a mine, constituted a nuisance and its conduct was 'no less a nuisance because it was carried out pursuant to some agreement between the defendants and the NSW Police Force'. The NSW Supreme Court ruled that unionists could not take any action which 'physically impedes' people, trains and vehicles from entering the mine. (61)
Interim injunctions have been freely granted to employers. (62) During the 1998 national waterfront dispute, (63) Patrick stevedoring won injunctions against Maritime Union of Australia (MUA) pickets in Victoria, New South Wales and Western Australia. Justice Beach's injunction in the Victorian Supreme Court (20 April 1998) banned 'all persons' from protesting outside Patrick's terminals in Melbourne and from standing within 200 metres of the site. Victoria Police were perplexed: Assistant Commissioner Allan Roberts described the Beach injunction as 'somewhat complex' and Operations Commander Noel Perry stated that police were operating in a 'grey area'. (64)
Although Justice Wright, on 3 June 1992, discretionally refused the mandamus order sought by NBH-Peko and declined to make the order absolute, he clearly forewarned the Tasmania Police to act against the Burnie picketing. He discharged the rule nisi (65) because he determined that such an order was an inappropriate solution to the impasse. In seeking a pragmatic resolution, Justice Wright concluded that police inaction and passivity resulted from a misconception of their powers and responsibilities rather than deliberate neglect 'to flout the law and ignore their duty', but he did not want police to lose respect by being forced by a court order to smash pickets. He was confident that the Tasmania Police would apply the law as stated in the Reasons for Judgment and make access to the mill. (66) Wright upheld the APPM argument that non-striking employees and other people on lawful business should have access to the plant. Obstructionist, passive picketing was declared illegal. The Commissioner of Police's misconceived policy of not breaking picket lines was incorrect and 'cannot be supported'. Wright determined that the picketers' actions in obstructing pedestrian and vehicular access to the plant was unlawful, occasioning various offences under Tasmanian law. He explicitly stated that Inspector Fox was 'clearly wrong' by suggesting that 'police should not interfere in a situation which had its genesis in an industrial dispute'. The officer 'must act with impartiality and he cannot allow a desire to avoid violence to deflect him from enforcing the law if it is being continuously flouted in his presence'. Wright's definition of a legal picket differed markedly from that espoused by senior police. Even non-violent, passive picketing was presented as unlawful if it deliberately obstructed others from entering or leaving private premises. Wright, although not directly alleging police ineptitude, instructed that 'the police cannot avoid their unpleasant duties by absenting themselves from potential trouble spots'. (67) Once a picketer physically impedes or obstructs another person or vehicle from lawfully entering premises, the obstruction is an illegal act and police have both the right and duty to act under the explicit provisions of the statutes. (68)
The most damning of the judge's criticisms was that the 'police cannot allow mob rule to displace the rule of law'. In accord with many historical judicial statements that protected the interests of capital, Justice Wright's labelled the Burnie picketers and supporters as an unruly mob. He thus accepted the employer's allegation that Burnie police were ineffective in controlling the picketing. The judge dismissed outright the respondent's argument 'that the police do not have adequate numbers to control the picketers at Burnie'. For Wright, it was 'a truly frightening proposition' of senior police using discretionary judgment not to break picket lines, a strategy that could also encourage other unlawful actions. Such a proposition 'tends to endorse the law of the jungle. It leads to anarchy. It is plainly unacceptable'. (69) Such an assertion is excessive. There is no evidence that the Burnie workers on the extended strike had anarchical or revolutionary tendencies. Their concern was the conditions of employment at the mill. Whenever police have been unsuccessful in removing a picket (for example, Saltley 1972) (70), mob rule has not necessarily triumphed. The Wright judgment indicated that police must act if an offence was being, or possibly would be committed, even when police were significantly out-numbered.
NBH's industrial strategist John Guest gladly accepted the judge's expose of picketing: 'This is the first time to our knowledge that there is actually a judgment that defines what is acceptable picketing behaviour and what is not'. Guest asserted that if police had 'carried out their rightful duty from day one', the lengthy dispute and altercations would have been unnecessary. (71) According to Fox, the Wright judgment 'eroded police powers of discretion throughout Australia'. (72)
During the mill picketing, Burnie police had neither determined for themselves nor conveyed to the picketers at what stage and on what conditions the peace-keeping strategy might be aborted and be replaced by precise and rigid law enforcement. Justice Wright's statement necessitated police action. Police saw no alternative but to apply the law according to the judge's exposition. According to Sergeant Timmerman, the preceding weeks had heightened the irony of police breaking the picket line:
By that stage we had built such a good rapport with the picketers and union officials, when the decision came down ... they sympathised with us. They said, 'OK, we know you have a job to do, you've been very good to us, we know your hands are tied. (73)
An imminent feeling of confrontation engulfed Burnie after the Supreme Court decision. After 23 days of non-intervention in the bitter dispute, police moved against the picketers. The 'big push' occurred on 4 June at 3pm when Fox, with about 85 police officers and escorting 30 afternoon-shift workers, confronted about 300 picketers at the main gate. According to an emotive TAS TV reporter, 'the dispute exploded, police lost control, and it was mayhem at the main gates'. (74) There were 41 arrests and 'others were left bruised, bloodied and emotionally distraught'. (75) Although Fox described the Wright judgement as 'unarguably sound in law', he asserted that its 'eventual application at the picket line created the violent situation we had sought to avoid'.76 Wright's warnings of 'mob rule' and 'the law of the jungle' were unfortunately prophetic; but also ironic in the sense that there was virtually no 'mob rule' or violence until the police heeded the judge's statement. NBH-Peko viewed the melees as confirmation of 'the law of the jungle'; unionists perceived them as the extent to which the company would go in order to break the unions. (77)
Considering the numbers involved on both sides, the bitter month long build-up to the violent climax, the enmity of picketers and mill management and the industrial issues involved, the level of violence on 4 June was relatively low compared with other major police-picketer clashes in Australia's industrial history. Despite the 4 June melees, according to reporters, the Burnie police remained on good terms with the workers. This lack of recrimination against police is unusual in Australian annals of violent clashes between police and picketers. The local media did not present the strikers as a problem, but rather as victims of a bitter dispute in Burnie's major industry. (78)
Another judge, Panckhurst of the Christchurch High Court, in the original trial of Derek Powell for Christine Clarke's manslaughter, chastised police for both their 'arrangement' of allowing picketers to stop vehicles for as much as five minutes to distribute pamphlets and for their inactivity during both days of the picketing:
Frankly I was surprised at the evidence given by members of the police concerning their approach to the picket line. Freedom of movement on the highways is a fundamental right. To empower a group of persons to obstruct traffic, even temporarily for their own purposes, was, in my opinion, to court danger. (79)
The judge determined that Powell's driving was 'not the only causative factor at play in the fatal events of 29 December'. Panckhurst, scornful of the police nonintervention, emphasised that the Gladstone Quay picket was illegal as it was a public road available for all to use. Sergeant Stace, albeit he is a police officer
did not have the power or authority to confer upon the picketers the right to place a picket line across the street. He simply could not, as a police officer, do this ... police allowed a minor illegality to occur; this does not make it legal. (80)
Although Powell was tried in a criminal court and although the circumstances were vastly different, Justice Panckhurst's 'Statement' echoed Justice Wright's 'Reasons for Judgment' in the APPM case, as both legal pronouncements directly condemned police inactivity at picket-lines. In summary, Panckhurst viewed the picket as illegal: the intent was not just for information, but designed to cause interruption and inconvenience and thereby exert pressure, one that detained and was antagonistic. The judge also attributed partial blame to the 'bad behaviour' of some male picketers, 'whose conduct was aggressive and inflammatory', thus grounds for industrial torts of unlawful interference and intimidation. (81)
Police evidence indicated that traffic obstructions are common to a number of activities, such as demonstrations, marches, rallies, festivals and sporting events. Superintendent John Reilly, Canterbury Police District Commander, endorsed Stace's liaison with the picket organisers; agreed there was no justification for forceful police intervention; refuted the need to employ a specialised squad; and defended the contemporary policing approach and local police judgements as applied to Lyttelton:
This is actually an industrial dispute, it's not just about someone being lazy and blocking the road ... We have to make all our judgements around that context. And so if there is some inconvenience, well that is what you expect when there is some industrial dispute on. (82)
Unlike the Tasmanian newspaper support of the workers at the 'Pulp', a Christchurch Press editorial alleged that police should have predicted and acted to avoid conflict: 'At Lyttelton the potential for anger from motorists faced with a road blockage should have been foreseen by the police'. (83) Powell's defence at his manslaughter re-trial directed blame at police inactivity as a 'major contributing factor ... The picket had been an illegal protest allowed by the police, which became a highly charged situation providing a recipe for the disaster that occurred'. (84)
Tasmanian and New Zealand Policing Legacies of Industrial Picketing
While police strategy may influence the course of a particular industrial dispute, employers can freely invoke industrial torts and judicial guidelines may override the policing approach and even set precedents. The experience of the APPM dispute changed police attitudes, especially of those directly involved at Burnie, to the handling of any future industrial disputes. The Wright decision had changed Inspector Fox's evaluation of industrial pickets:
Go down the traditional lines of policing and go in there and ... bang a few heads to make a few arrests and punch through a picket line; bearing in mind that is what I have to do now according to Justice Wright. (85)
The legacy of both the Wright decision and the police actions of 4 June 1992 were evident in the four-month Burnie waterfront dispute of 1995. (86) Inspector Fox at the beginning of the picketing informed the union organisers that they were committing an offence: 'I've got no room to manoeuvre. I'll have to arrest you, boys'. (87) Unlike the APPM dispute, police took swift and decisive action once picket lines impeded access to the wharf. (88) John Guest, re-located to North Forests Products management, believed that Burnie police had learnt from the mistakes of 1992 and the decision of Justice Wright. Guest applauded police for arriving in force with a bus at the beginning of the Maritime Union of Australia picket at Burnie in 1995 and 'nipping any trouble in the bud'. (89) Again in 1995, Inspector Timmerman, stationed at Hobart, advised that police would 'take some pretty swift action' against future picketing. (90) Tasmanian police looked for direction from the Victoria Police's decisive action in dealing with the Builders Labourers Federation.
The extent to which the Wright judgment set a precedent for the policing of major industrial disputation is problematic. His statement can be viewed as a justification for future strong police action against industrial picketing and, more broadly, protest actions. Victoria Police partly rationalised its highly-condemned baton charge at Richmond Secondary College on 13 December 1993 by the necessity of police involvement to avoid, in Justice Wright's words, 'the law of the jungle'. Critics of alleged police idleness during the 1998 Australian waterfront dispute have cited the Wright judgement: one of Patrick's solicitors alleged that the Victoria Police 'made the same mistakes as the Tasmania Police' in 1992 by not responding to 'the violence, intimidation, blockades and thuggery'. (91)
Detective Superintendent Lawrence Reid conducted an internal inquiry into police actions at the 1999 Lyttelton picket. The report highlighted the uncertainty and unpredictability of policing picket lines: hindsight indicated that with more police, the Powell situation 'may not have happened'. (92) Sergeant Stace's perception was that there would be greater pressure from certain politicians and big business 'to force the issue by police'. In a similar scenario, he believed that 'the police hierarchy would not allow it to go on for long': there would be a quicker response and instructions to ensure a public road was not blocked by picketers; and Police Command would provide extra staff in a few hours. (93) Les Wells was adamant that the WWU would not avoid picketing in future, but he feared decisions
would be taken out of the hands of the local police ... I certainly think there will be a bigger police presence next time ... ordered to put on riot gear ... they'll come in with shields and helmets next time. (94)
The Lyttelton tragedy highlighted the issue of local communities being involved in industrial picketing. In early 2001, unionists and supporters rallied to pickets around the South Island of New Zealand. At various times during a sporadic three months' protest action, police employed squads of special officers trained in crowd control to deal with picketing against Mainland Stevedoring contract workers loading Carter Holt Harvey logs at Port Chalmers, the Bluff and Nelson. The WWU's antagonism was directed against the outside labour flown in from the North Island. New Zealand Police adopted a tougher, more decisive and interventionist approach at these protests but one still prepared to liaise with union organisers. Lessons were learnt from Lyttelton, especially the need for police to quickly establish their authority and secure traffic access. At Nelson, police allowed unionists to 'yell and scream' but would not tolerate blockage of roads. A specialist group of riot police was deployed but they were removed after periods of mundane monitoring. Like Lyttelton, police were prepared to negotiate with picketers but, unlike Lyttelton, were determined to maintain open traffic access. Superintendent Matthews was deployed to the Bluff and Nelson disputes so that Police Headquarters could be kept informed of any developments; ensure all was done according to policy and avoid any over-reaction. (95)
In August 2002, Derek Powell lodged a formal complaint against the Lyttelton police, highlighting 20 incidents of alleged police inadequacy, including that police illegally permitted people to stop and detain road users. When Judge Ian Borrin of the Police Complaints Authority made his findings public in April 2004, he upheld six of the allegations against the Lyttelton police, including the central allegation that police, in hindsight, had acted inappropriately, but not unlawfully, by allowing the picket to stop and detain road users. His report effectively condemned any form of future picketing that would obstruct a roadway, no matter for how brief a period of time. Judge Borrin reinforced the judicial statements of Wright and Panckhurst in advocating zero tolerance of even minor street offences:
In considering their responsibilities in dealing with demonstrations or industrial actions likely to interfere with members of the public going about their lawful activities Police must not sanction actions which involve a breach of the law. (96)
Judicial criticism of local police handling of the two industrial disputes fails to consider the potential consequences of a traditionally belligerent and confrontational policing approach, one prone to antagonise workers rather than promote cooperation and compliance. Both the Burnie and Lyttelton disputes fail to construct an argument for more rigid law enforcement of public order situations. On the contrary, they reveal the necessity for police flexibility and operational independence to handle unexpected contingencies. Based on local knowledge and experience, police in both cases placed peace-keeping above the enforcement of the law, although judicial statements, in hindsight, advocated coercion on behalf of the state against any forms of obstructionist picketing. The traditional expectation that, at the request of the company or at the moment anyone is inconvenienced, police would instantly act and make arrests no longer pervades modern police thinking in both countries. Although policing demands at Patrick terminals during the 1998 Australian waterfront dispute were vastly different, the low-key policing modus operandi generally resembled the peace-keeping strategies employed at Burnie and Lyttelton. (97) Police maintain the dominant position as they ultimately decide what is acceptable or unacceptable picketing behaviour at the factory or the work-site. However, employers, encouraged by judicial precedents and statements, can instigate legal proceedings to their advantage.
Burnie and Lyttelton police rely heavily on the cooperation of the people of town and surrounds, especially in times of emergency. After both industrial disputes were settled, the policing responsibilities in those areas continued unabated. In September 1993, NBH-Peko sold the Burnie mill to AMCOR; however, the labour force of northwest Tasmania, including the police, remained tied to the district. In an industrial town like Burnie or a port town like Lyttelton, police cannot afford to lose local support and they rely on local information. The police in both conflicts were attempting to keep the peace not just between company and picketers but also within the communities. Both Burnie and Lyttelton police, who strongly identified with their district and who formed part of the entrenched community, tolerated and accommodated union protest. Burnie's police adopted and maintained a consistent strategy throughout the protracted dispute; the Lyttelton police assumed a pragmatic response in order to deal with the short-lived port conflict.
The picketers in both disputes identified company management, not the police, as the enemy. Neither Burnie nor Lyttelton police stereotyped the picketers as the problem. To community police practitioners, both APPM and Lyttelton picketers were fellow residents; protesting workers, not criminals. However, the police as the coercive agency of the state ultimately maintain the latent capacity to use force in industrial disputes if deemed reasonable and necessary in the circumstances.
David Baker *
* I am grateful to the two anonymous referees for their constructive and challenging comments about the first draft. All interviews cited in this article were conducted by the author who holds the original recordings.
(1.) For detailed accounts of these two disputes, see David Baker, Batons and Blockades: Policing Industrial Disputes in Australasia, Circa, Melbourne, 2005, pp. 82-162.
(2.) David Baker, 'Barricades and batons: a historical perspective of the policing of major industrial disorder in Australia' in Michael Enders & Benoit Dupont (eds), Policing the Lucky Country, Hawkins Press, Annandale, 2001, pp. 199-222.
(3.) Baker, Batons and Blockades, pp. 31-37, 42.
(4.) Ibid., pp. 36-43.
(5.) Bobbie Oliver, Unity is Strength: A History of the Australian Labour Party and the Trades and Labour Council in Western Australia, 1899-1999, API Network, Perth, 2003, pp. 70-76.
(6.) Jim Comerford, Lockout: an eyewitness account of Australia's most violent conflict, CFMEU Mining and Energy, Sydney, 2006, pp. 319-390.
(7.) Baker, Batons and Blockades, pp. 28-49.
(8.) Graeme Dunstall, 'Governments, the police and the Left, 1912-1951' in Pat Moloney and Kerry Taylor (eds), On the Left: Essays on Socialism in New Zealand, University of Otago Press, Dunedin, NZ, 2002, p. 90.
(9.) Richard Hill, The Iron Hand in the Velvet Glove: The Modernisation of Policing in New Zealand, 18861917, Dunmore Press, Palmerston North, 1995, p. 304.
(10.) Dunstall, 'Governments, the police and the Left', p. 99.
(11.) S.I. Young, The Activities and Problems of the Police in the 1951 Waterfront Dispute, MA thesis, University of Canterbury, 1975, pp. 7, 31, 40, 54, 81, 92-94, 118-123.
(12.) New Zealand Police: Manual of Best Practice, p. 93 and Planning Manual: Scene Commander 2002, p. 1.
(13.) National Distribution Union, 'A manual for organisers', unpublished, June 1999, p. 75.
(14.) Lloyd Robson, A History of Tasmania, Volume Two: Colony and State from 1856 to the 1980s, Oxford University Press, Melbourne, 1991, p. 392.
(15.) Dallas Hanson, 'APPM strike in Burnie 1992: a case study', Research Report no. 4, the Business School, University of Tasmania, Launceston, December 1993, pp. 3 & 19.
(16.) Nicholas Way, 'Why Peter Wade took on the unions', Business Review Weekly, 29 May 1992, p. 30.
(17.) Advocate's Editorial, 14 May 1992.
(18.) Industrial Relations and Management Letter, vol. 9, no. 3, April 1992, p. 12.
(19.) Ibid., pp. 16-17.
(20.) Baker, Batons and Blockades, pp. 84-86.
(21.) Press Weekend (Christchurch), 29 January 2000, p. 3.
(22.) Lawrence Reid, 'Operation Newcastle: protest action at Lyttelton port, Christine Clarke receives fatal injuries' Draft Report, New Zealand police, unpublished, 2001, p. 5.
(23.) 'The Lyttelton apple picket 1995' video, courtesy Lyttelton Waterside Workers Union.
(24.) Bruce Ansley, 'Death on the picket line', Listener, 5 February 2000, p. 24. The LPC, by erecting razor wire in parts, had fenced off the free public access to the wharves.
(25.) Therese Henning and Rick Snell, 'The APPM strike: an exercise of police discretion; a poor example of judicial oversight', Bond Law Review, vol. 5, no. 1, 1993, p. 97; Baker, Batons and Blockades, pp. 89-93.
(26.) FEDFA secretary, Mike Grey interview, 25 October 1995.
(27.) Inspector Hank Timmerman interview, 27 October 1995.
(28.) Andrew Hall and W. de Lint, 'Policing labour in Canada', Policing and Society, vol. 13, no. 3, 2003, p. 224.
(29.) Timmerman interview.
(30.) Roy Fox, An industrial dispute: a police perspective, unpublished paper, Monash University, 1992, p. 16.
(31.) Inspector Roy Fox, interview 23 October 1995 (1).
(32.) Inspector Roy Fox interviews, 23 October 1995 (1) and 25 October 1995 (2).
(33.) One incident that highlighted the deteriorating relationship between police and mill management occurred on the morning of 11 May. Staff management had contacted Inspector Fox to request police attendance immediately because 'a number of unionists had entered the boiler-house and were disrupting the work procedures' (Fox, 'An industrial dispute', p. 14). After the boiler operators refused to hand over the controls in the boiler-room to non-union staff, police escorted several union representatives from the site and arrested five workers for trespass. The police operational organiser admitted that he was deceived: 'There was a prima facie case of trespass because management told us they were trespassing. So we were forced ... in a sense tricked to take action' (Timmerman interview). The five were charged at Burnie Police Station, but the charges were dropped. A company executive later admitted that four of them were employees. Inspector Fox learnt that those arrested had worked in that particular control room for years and so had effectively been sacked: 'you're talking about fellows who had been there 20 years working in that one area and the next day they are not allowed, which is a nonsense' (Fox interview 1). As the Burnie police did not appreciate the deception, the police relationship with APPM management was placed on a more formal and less trusting foundation. The north-west district commander determined that police would only reply to the company and only come to the plant if the company provided a request, 'in writing by facsimile or delivered by hand', for assistance over trespass that set out facts justifying a police presence (Fox interview 1). This stipulation incensed mill management. See Baker, Batons and Blockades, pp. 87-92.
(34.) Timmerman interview.
(35.) Robert Reiner, 'The policing of mass demonstration in contemporary democracies: policing, protest, and disorder in Britain' European University Institute Working Papers, San Domenico, 1997, pp. 5-13.
(36.) R v Derek John Powell, High Court of New Zealand, Christchurch Registry transcript T63/00, June 2001, p. 239.
(37.) Sergeant Gil Stace, interviews, 12 February 2002 (1) and 5 December 2002 (2).
(38.) R v Powell 2001, p. 248.
(39.) Ibid., pp. 242, 245-249.
(40.) Ibid., p. 243.
(41.) Reid, 'Operation Newcastle', p. 13.
(42.) WWU Lyttelton Branch President, Les Wells interviews 12 February 2002 (1) and 5 December 2002 (2).
(43.) Wells interview (1).
(44.) Sergeant Gilbert Stace interview, 12 February 2002.
(45.) National Distribution Union (NZ) secretary, Paul Watson, interview 11 February 2002.
(46.) TVNZ, 29 December 1999.
(47.) R v Powell 2001, sentence of Panckhurst J, p. 3.
(48.) Mandamus (literally 'we command') is an order commanding a person or body to perform a duty by common law or statute. The order is available to endorse administrative duties.
(49.) Originating Application filed on behalf of the Applicant by Dobson, Mitchell and Allport, Hobart, 22 May 1992.
(50.) Quoted in the Australian, 26 May 1992.
(51.) Justice Wright was the son of Liberal Senator Reg Wright, who had represented the employers in the Hursey Case, Tasmania's longest-running industrial dispute in the late 1950s, when police were used to smash the Hobart waterside pickets. The Supreme Court hearing found entirely in the Hurseys' favour. See Tas Bull, Life on the Waterfront: an autobiography, Harper Collins, Sydney, 1998, pp. 65-87.
(52.) Affidavit of Inspector Roy Fox, no. M131 of 1992, Supreme Court of Tasmania, p. 5, paragraph 16.
(53.) Stace interview.
(54.) R v Powell 2001, p. 248.
(55.) Wells interview (1).
(56.) R v Chief Constable of Sussex; Ex parte International Trader's Ferry Ltd (1999) 2 AC 418. Richard Hill argues that although police generally side with employers rather than workers during industrial disputation, some cases arose in late nineteenth century New Zealand when police kept the peace in line with the wishes of executive government. He cites the 1890s 'when the police responded to the Liberal government's wishes for harmony between capital and labour by refusing to endorse employer confrontation towards workers'. See Richard Hill, 'The police, the state, and 'lawless law' in Melanie Nolan (ed.), Revolution: The 1913 Great Strike in New Zealand, Canterbury University Press in association with the Trade Union History Project, Christchurch, 2006, p. 81.
(57.) Victoria Police Gazette, 28 April 1997, paragraphs 23 & 30.
(58.) Roger Douglas, Dealing with Demonstrations: The Law of Public Protest and its Enforcement, Federation Press, Sydney, 2004, pp. 93-101.
(59.) Ibid., p. 93.
(60.) Chris Nyland and Stuart Svensen, 'The battle of Bombo: besetting laws and the right to picket in New South Wales', Australian Journal of Labour Law, vol. 8, no. 3, 1995, pp. 177-202.
(61.) Daily Telegraph, 30 April 1998.
(62.) Douglas, Dealing with Demonstrations, p. 133.
(63.) For detailed discussion of the MUA dispute, see Gerry Griffin and Stuart Svensen, 'Industrial relations and the 1998 Waterfront Dispute', International Employment Relations Review, vol. 5, no. 2, 1999, pp. 72-76; Barbara Pocock, 'Success in defence: union strategy and the 1998 Maritime Dispute', International Employment Relations Review, vol. 5, no. 2, 1999, pp. 17-37; Helen Trinca and Anne Davies, Waterfront: the battle that changed Australia Doubleday, Sydney, 2000; and Stephen O'Neill's commentary, 'The Waterfront Dispute: from High Court to settlement', Current Issues Brief, 1 1998-99, Parliament of Australia Library.
(64.) Australian, 20 April 1998, p. 2.
(65.) A decree, order or declaration nisi is one that is conditional and requires something more to happen to make it absolute, that is complete and unconditional.
(66.) Wright J. 'Reasons for judgment', R v Commissioner of Police for the State of Tasmania ex parte North Broken Hill Limited (trading as Associated Pulp and Paper Mills and APPM), 3 June 1992, pp. 8-9.
(67.) Ibid., p. 8.
(68.) Peter Punch, Australian Industrial Law, CCH, North Ryde, 1994, p. 948.
(69.) Wright J., 'Reasons for judgment', pp. 7-8.
(70.) Mass pickets forced the closure of the Saltley Coke Depot, Birmingham, in February 1972. According to Prime Minister Thatcher, the Saltley closure 'was a frightening demonstration of the impotence of the police in the face of such disorder'; Lady Thatcher, The Downing Street Years, Harper Collins, London, 1995, pp. 340-353.
(71.) North Industries (Burnie) industrial strategist, John Guest, interview 24 October 1995.
(72.) Fox interview (1).
(73.) Timmerman interview,
(74.) TAS TV News, 4 June 1992, 6.30pm
(75.) Mercury, 5 June 1992, front-page report; Examiner, 5 June 1992, series The Burnie Battlefront, pp. 1-3.
(76.) Fox, 'An industrial dispute' pp. 25-26
(77.) 7ZR News, ABC Radio, 9.05am, 5 June 1992
(78.) Mercury, 5 June 1992 and 10 June 1992.
(79.) R v Powell 2001, sentence of Panckhurst J., p. 4.
(80.) Ibid., p. 9.
(81.) Ibid., pp. 4, 9, 19.
(82.) Commander John Reilly interview, 11 February 2002.
(83.) Press, 20 June 2001, p. 8.
(84.) Press, 6 August 2002.
(85.) Fox interview (1).
(86.) Advocate, 15 April 1995
(87.) Fox interview (2), 25 October 1995.
(88.) Advocate (Burnie), 9 May 1995 and 25 July 1995.
(89.) Guest interview.
(90.) Timmerman interview.
(91.) Stuart Wood, Keeping Things Peaceful--From the Parliament House Riot to Riots on the Waterfront: the Failures of Policing, unpublished draft paper, 1998, pp. 1-2, 26.
(92.) Reid, 'Operation Newcastle' p. 12.
(93.) Stace interviews (1) and (2).
(94.) Wells interviews (1) and (2).
(95.) Graham Thomas, Acting District Commander, Tasman District, and K.J. Bailey, Inspector, Special Operations: interviews 10 December 2002.
(96.) Report of the Police Complaints Authority about Police Conduct in respect of Industrial Protest Action on the Waterfront at Lyttelton on 29 December 1999 during which Ms Christine Clarke suffered Fatal Injuries after being struck by a Motor Vehicle driven by Mr Derek Powell, Police Complaints Authority, Wellington, 2004, pp. 8, 29, 30.
(97.) Baker, Batons and Blockades, pp. 163-190.
David Baker is Head, Criminal Justice, School of Humanities, Communications and Social Sciences, at Monash University Gippsland. He is the author of Batons and Blockades: Policing Industrial Disputes in Australasia (2005). His main research interests are public order policing, police history, industrial relations and labour history.
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|Publication:||Labour History - A Journal of Labour and Social History|
|Date:||Nov 1, 2008|
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