2 The following facts were found by the learned magistrate and are not disputed:-

"On Monday the 10th of December 1984 members of the Administrative and Clerical Officers Association were engaged in a strike directed against the Commonwealth. The defendant was and is a member of that union and he also was and is a clerical employee of the Commonwealth. As a national executive member of the union he took part in calling the strike Australia wide. He assisted in the organisation of the strike in Hobart and in particular took part in a picket of the Commonwealth Government Centre in Collins Street, Hobart on the day of the strike. There is no doubt or dispute that the Commonwealth Government Centre is a Commonwealth place.

On that Monday morning last December, Mr Price, an electrical contractor, arrived at the Centre for the purpose of supervising his men in the course of the work which he had contracted to perform for the Commonwealth. He proposed to drive from Collins Street and down a ramp in the Centre leading to a parking bay. Apparently Mr McDonough, a Commonwealth public servant, was then on strike and on picket duty alone. He persuaded Mr Price to stop his vehicle either by standing in front of it or signalling him in some manner. Mr Price explained that as a private contractor the strike had nothing to do with him and insisted upon entering the Centre. Mr McDonough allowed him to do so. As he explained in evidence he was on his own and had no literature with him at that time to distribute to the driver in relevance to the strike. Half an hour later Mr Price left the premises. At about 9.45am he returned. At that time Mr McDonough had been joined on the picket by two others; the defendant Dain Wesley Bolwell and Romaine Dallow.

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By 9.45am the picket was organised. The three union members were strung across the entrance to the Centre so as to bring incoming vehicular traffic to a halt. The intention of the members of the picket was that one of their members should attempt to dissuade the driver from entering the Centre and perhaps give him a pamphlet. If that attempt failed then the driver was to be allowed to proceed. But the intention was to block all drivers and bring them to a halt at least temporarily so that communication could be made with them.

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... Price came to a halt because his passageway was obstructed and at that time at least the front of his motor vehicle was on Commonwealth property. He wound down his window and said something to the effect that he desired to proceed and that the strike had nothing to do with him. The defendant in reply said something to the effect that he could not get in and remained in position in front of the vehicle. The defendant's intention was to give Mr McDonough the opportunity to move to the driver's side and speak to him. Price, however, did not know that and became impatient. He moved his vehicle forward slowly so that it came into contact with the defendant. After moving forward a metre or two he halted his vehicle. Then he moved slowly forward another metre or two. This action caused the defendant to fall across the bonnet. After the vehicle halted a second time the defendant walked around to the side of the vehicle, wrenched a wiper blade off the windscreen and threw it upon the ground. Price then alighted from his vehicle and made a complaint to a security officer inside the building. After some investigation the defendant was charged with the two offences in question. Price was not charged though the defendant made a complaint of assault."

3 The learned magistrate found that Price acted unwisely and impatiently but that he acted on the spur of the moment without consideration, whereas the applicant did not, for the nature of the picket had been planned. Although the learned magistrate's findings tend to suggest that this was only Price's second visit to the Centre, it appears from his evidence that he entered with his car more than once before the incident. On the first such occasion he had been momentarily delayed while he persuaded the picketer McDonough to let him through, and on the subsequent occasions before his confrontation with the applicant he had been allowed through without being questioned. It is also clear from the transcript and the argument put to me by both counsel that the interruption to Price's passage in no way involved inconvenience to or obstruction of other persons or traffic and that it was, as the learned magistrate found, "early on a Monday morning and few people were about".

4 The first offence upon which the applicant was convicted is created by s12(2) of the Act which reads as follows:-

(a) engages in unreasonable obstruction in relation to the passage of persons or vehicles into, out of, or on Commonwealth premises, or otherwise in relation to the use of Commonwealth premises;

(b) being in or on Commonwealth premises, behaves in an offensive or disorderly manner; or

(c) being in or on Commonwealth premises, refuses or neglects, without reasonable excuse, to leave those premises on being directed to do so by a constable or by a person authorized in writing by a Minister or the public authority under the Commonwealth occupying the premises to give directions for the purposes of this section,

is guilty of an offence, punishable on conviction by a fine not exceeding Two hundred and fifty dollars or imprisonment for a term not exceeding three months, or both."

Section 4 contains the following definition for unreasonable obstruction:-

"'unreasonable obstruction' means an act or thing done by a person that constitutes, or contributes to, an obstruction of, or interference with, the exercise or enjoyment by other persons of their lawful rights or privileges (including rights of passage along the public streets) where, having regard to all the circumstances of the obstruction or interference, including its place, time, duration and nature, it constitutes an unreasonable obstruction or interference, and 'unreasonably obstructs' has a corresponding meaning."

5 The applicant does not quarrel with the learned magistrate's finding that his act constituted an obstruction of or interference with the right or privilege of Mr Price to take his vehicle onto the premises. His counsel submits however that it could not be said to be an unreasonable obstruction, and furthermore that the learned magistrate, in assessing its allegedly unreasonable character, misdirected himself by having regard to extraneous considerations. I shall deal with the latter submission first.

6 The learned magistrate, when considering the law, prefaced his remarks by observing that the question for him to determine was whether the undoubted obstruction caused by the application "was unreasonable in all the circumstances". He went on to make the following observations:-

"In some cases it seems to me that it is useful to attempt to solve a question by applying rules of common sense before trying to apply rules of law. Where the criterion for decision is 'reasonableness' the average common juror is in my view as able to make as good a decision as the average lawyer.

What did Mr Bolwell and his fellow executive members hope to gain by picketing? Obviously the Commonwealth Government was brought under pressure to meet the union demands by reason of the nation wide strike. What need then for picketing?

I take it that the union reply would be twofold. Mainly to bring the strike to the attention of the public. Second, to bring further pressure to bear upon the Commonwealth by persuading members of the public not to deal with the Commonwealth during the currency of the strike. Clearly, picketing can be a two edged sword. If it is too rigidly enforced it can alienate the public. It can deny services to the employer which mature consideration would show to be unwise and even unsafe. It can lose the strike.

So far I have made observations which seem to me to be the dictates of common sense. But I do not think the defendant and the members of his fellow executive followed them carefully through. No plan was apparently formulated by the executive of the union as to how the picketing was to be implemented in each State. Further, the details of the picket at the Centre at Hobart were left to the last minute.

Where was the need to obstruct anyone? Why not say a picket designed merely to invite drivers to stop by some signal? This would have given picketers the opportunity to distribute their pamphlets and give their advice to all those who were willing to listen.

In short, it seems to me that the union had already applied the pressure it felt it needed to apply upon the Commonwealth by calling the strike. Once a decision had been made to set up pickets but allow members of the public to pass by the picket if they insisted, the picket became an exercise in public relations. Therefore from the point of view of common sense it seems to me to have been unwise to obstruct the public, even temporarily, from entering the Centre. I have no doubt that most members of the public co-operated when their entrance was obstructed; some wearily, some willingly. But there will always be a few who will resent having their legal right of passage denied. The picket broke down because it made no allowance for Mr Price or others like him. In fairness to Price perhaps his electrical work was essential. Has anyone even yet thought to ask if it was?

In my opinion the obstruction was unreasonable. Of course the question for me to answer is not whether the picketing plan was strategically unwise but whether in all the circumstances the actual obstruction caused by the defendant to Price was unreasonable. The defendant's intention was to obstruct Price until McDonough could speak to him. It was the defendant who insisted upon standing in front of Price's vehicle. In the circumstances I find this was unreasonable obstruction by him."

"The picketing plan had an aggressive edge, the temporary obstruction of drivers who might not be sympathetic with the aims of the strike. As I have stated, in my opinion the temporary obstruction was unreasonable. However, granting that the defendant had a bona fide but unreasonable plan he ought to have been aware of the need to act with tact and care. He did not do so. By damaging the wiper he put himself further in the wrong and set a poor example to his colleagues.

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What saddens me is the lack of vision and consideration for the public welfare by the defendant who himself apparently took an important share in the decision to call a national strike. It is not for me, of course, to consider the merits of the strike. But if there must be strikes one would think the organizers would do their best to act lawfully and minimize offence and inconvenience to the public. If the picketers in this case had sought merely to communicate courteously with members of the public visiting the Centre I would have found their conduct to be commendable. Certainly it would have been more likely to gain public support."

7 With respect, I have formed the view that the learned magistrate did misdirect himself as to the criteria to be applied in determining whether the obstruction was reasonable. He seems to have taken the view that all the circumstances should be considered and the principal circumstances he touched upon, before concluding that the obstruction was unreasonable, were those relating to the applicant's purpose and the inutility of the means adopted to achieve it. True, having made those remarks, he said that whether or not the picketing plan was strategically unwise was not the question for him to answer, but the only matters upon which he touched were matters from which he concluded that some members of the public had been needlessly inconvenienced.

8 Section 4 does not invite a consideration of all the circumstances at large. What have to be considered are "all the circumstances of the obstruction or interference". There follow the words "including its place, time, duration and nature". These are not the only circumstances of the obstruction to be considered, but with respect the learned magistrate does not appear to have given consideration to any of those nominated circumstances, but appears to have confined himself to considering why any obstruction at all was reasonably appropriate. Although from the point of view of achieving an industrial end the strategic wisdom of obstructing individuals was put to one side by the learned magistrate, it is hard to escape the conclusion that his Worship regarded the obstruction as unreasonable, only for the reason that it was not in his view reasonable to obstruct anyone at all.

9 It is not an offence against the Act merely to obstruct another in the exercise or enjoyment of his lawful rights or privileges. The obstruction qua obstruction must be unreasonable. It is not hard to imagine situations where the duration of the obstruction, its nature and when or where it occurs will clearly render it unreasonable. In the instant case it occurred on a Monday morning when few people were about, it lasted for a short space of time, it inconvenienced one person only, it was not shown to be essential that that person should have vehicular access to the premises, the applicant and his two colleagues were not intending anything other than a transitory obstruction and the obstruction caused no damage to personal property (I put aside the damage to the windscreen wiper which was not alleged as part of the obstruction, but as a subsequent and independent incident). None of these factors was given specific attention in determining the alleged unreasonableness of the conduct. No doubt they would try the patience of anyone thus obstructed, especially if he were unsympathetic to the cause, but irritating or inconvenient though they might be, the court before proceeding to conviction had to be satisfied beyond reasonable doubt that the circumstances of the obstruction itself made it an unreasonable obstruction.

10 The researches of counsel failed to produce any direct authority on the sections in question. The learned magistrate's attention was directed to a number of "highway cases" in the United Kingdom, but the legal position there is totally different to ours and in my view they are of little assistance in construing the Commonwealth Act which proceeds on the premise that obstructions per se are not prohibited, but only those obstructions which are, having regard to the circumstances adumbrated in s4, unreasonable.

11 I conclude therefore, with respect, that the learned magistrate did misdirect himself and that for that reason the conviction on the first complaint must be quashed. It was also submitted, as I have said, that on the findings made no case of unreasonable obstruction was made out. For my own part I would have great difficulty in being satisfied beyond reasonable doubt, on those findings, that the obstruction was unreasonable. On balance I do not think a tribunal of fact properly directed could reasonably find the case proved. But even if it were within the tribunal's province to reasonably take a different view, it could not regard the offence as anything more than a minor instance of the proscribed behaviour. If I am wrong in holding that on the findings made no offence could be made out, I am of the opinion that I ought not, for the last mentioned reason, exercise my discretion under s110(2)(c) or (d) of the Justices Act 1959 to remit the matter to the Court of Petty Sessions for further determination or re-trial.

12 The appeal will be upheld and the conviction for unreasonable obstruction quashed. The remaining matter under the notice to review will stand adjourned sine die.