Wednesday 21st Nov, 2018

1998 Waterfront Dispute: How 1998 changed me – Julian Burnside

Photo: David Sexton
Photo: David Sexton

JULIAN Burnside is one of Australia’s foremost barristers, having acted for the Ok Tedi people against BHP and Rose Porteous against Gina Rinehart.

More recently he represented footy coach James Hird as the whole saga surrounding supplements given to players from Essendon Football Club was played out.

In 1998 he was one of an all-star list of Australian barristers who represented the Maritime Union, the others being Herman Borenstein SC, Mordecai Bromberg (later SC and a judge of the Australian Federal Court) and Josh Bornstein.

Together they successfully took the legal fight to Patrick Stevedores first in the Federal Court and then in the High Court of Australia.

But as Mr Burnside told DCN from his home in Melbourne’s east, an impending honeymoon prevented him from acting for the other side.

“Well contrary to popular belief, barristers don’t really choose their cases – you get called by a solicitor and if you are free you do it,” he said.

“As it happens, there was a bit of good luck in it as I was in chambers one day and got a call. It was a solicitor asking if I could take a brief in this brewing fight and I asked when it was going to be and they said ‘March-April’.

“I said ‘I don’t think I’m going to be available’ because I was about to get married and I was going to be on my honeymoon. When I told (now wife) Kate she said ‘that’s going to be an interesting case, you should have said yes’.”

Mr Burnside was in chambers next day when he took a call from fellow barrister Josh Bornstein asking him to take a brief, albeit for the Union.

“So the first (phone call) had been a solicitor for the farmers (NFF, arch-foes of the MUA) and it was just a question of whether I was available to act.

“The first day I thought I wasn’t, the second day I knew I was and (at the time) I didn’t care which side it was, I just said ‘yeah, sure’.”

DCN asked Mr Burnside of his most clear memory.

“It was bloody hard work. The intense period of my involvement started on the 7th of April and we got judgement in the High Court, I think, on the 3rd of May.

“Now to go from the Federal Court to the High Court and judgement in less than a month is like rocket speed.”

Mr Burnside described the case as “pretty complex” and the challenges of having to “get on top of the relevant bits of legislation”.

He recalled MUA leader at the time, John Coombs, as being a calm character.

“John was terrific actually, he was pretty calm and very avuncular I guess and pretty patient.

“I think he probably recognised I was a newcomer to industrial litigation and he was very patient and always seemed to be optimistic about what where we were going – just the sort of client you want.”

Mr Burnside retains a harsh view of the Howard government’s role in the stoush.

“I thought the government’s position in it was pretty dodgy. I had grown up fairly conservative and always thinking that governments were fairly harmless beasts doing what had to be done.

“But it was pretty clear in this instance that the government had actively helped Patricks break the government’s own industrial laws and that struck me as being a very bad thing,” he said.

“It was probably my involvement in that case and my observation of what the government had done that softened me up to take a more bleak view of what the government was doing when I got involved in the refugee issue.”

Mr Burnside represented civil libertarians against the federal government three years later, on that occasion it was the treatment of boat people who had been picked up by the Norwegian freighter Tampa.

But returning to the waterfront, he notes the practical legal point that “if you think you can sidestep the law and pull the wool over the court’s eyes, you are probably wrong”.

And he said any gains ultimately made by Patrick occurred by “playing fair”.

“I think that’s important,” he said.

“When Josh (Bornstein) and I went to the High Court, I think getting judgement, we were at the little downstairs area where you check in and say who you are.

“A bloke who I think was a member of the cleaning staff came along and said to us, ‘thanks fellas, we all feel a bit safer now’.

“I hadn’t really given it much thought, but the fact is the MUA was seen as a fairly big, ugly union. If it could be crushed, then any union could be crushed.

“And if its workers could be booted out, then no-one was safe.”

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