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Tourism association wants Federal Crimes Act used to resolve the domestic airline pilots' industrial dispute.

RICHARD PALFREYMAN: There's been no shortage of suggestions from various vested interests on what the Government should do to break the pilots' dispute. The Australian Tourism Industry Association yesterday called on the Government to advise the Governor-General to make a proclamation under the Crimes Act, to deal with the pilots. Section 30J of the Crimes Act would allow striking pilots to the gaoled for up to one year if they prolong the dispute. Lecturer in Industrial Law at the University of Sydney, Andrew Stewart, explained to Gordon Taylor how the Crimes Act could be used.

ANDREW STEWART: What would need to happen is that the Governor-General would have to issue a proclamation under the Crimes Act, to the effect that a serious industrial disturbance existed which was prejudicing or threatening trade or commerce between the states. Once that proclamation has been made then it would be open for a prosecution to be mounted against any person who engaged in strike action in relation to that particular matter, during the operation of the proclamation.

GORDON TAYLOR: And can only the Governor-General make that proclamation?

ANDREW STEWART: Yes, that's quite clear from the terms of the Act. The Governor-General would have to do that and of course, in doing so, the Governor-General would not make an independent decision but would be according to convention, advised by the Commonwealth Government.

GORDON TAYLOR: You talked of a strike but the pilots say they aren't on strike, that they in fact have resigned and so the Crimes Act won't be successful in this case.

ANDREW STEWART: Well, the problem with that argument is that it rather ignores some fairly significant provisions in the Crimes Act. The relevant section which is Section 30J, defines a strike as including a "total or partial refusal of employees, acting in combination, to accept work if the refusal is unreasonable". There's a clear argument there that by resigning en masse, with the intention of furthering a dispute about terms and conditions of employment, that that is an unreasonable refusal to accept work.

GORDON TAYLOR: That's the Crimes Act, but are there better ways of wielding the big stick, of threatening to gaol the pilots?

ANDREW STEWART: Well, I think it's interesting that the Crimes Act has been brought up at this time. It is not a provision which has really been used very much, if at all. It's been used once since it was introduced back in 1926, and the fact that people are starting to talk about the Crimes Act possibly reflects a growing appreciation that the pilots have planned this action very carefully and that they have had very good legal advice. There are other sanctions which might be available. The most obvious ones are under the Trade Practices Act and under the common law. The Trade Practices Act sanctions are particularly extensive but the problem there is that it may well be that the pilots have a defence under one of the provisions of the Act. In fact, if they've planned their action carefully, which they appear to have, they may well fall within the terms of that defence. That would then throw the tourist operators back onto the common law. The difficulty that they have is to establish that they were the target, the intended target of the strike action, and arguably, the target of this action was the airlines, not the tourist operators. So it would seem that as far as the common law is concerned, it's only the airlines who could sue, not the tourist operators, not commuters, not businesses generally, despite the fact that they're obviously being harmed by the action pilots have taken.

RICHARD PALFREYMAN: Andrew Stewart, a lecturer in industrial law at Sydney University.