Arbitration In Contempt

Appendix I


January 16, 1986

Dear Sir

Within the last two years in Australia a crucial debate concerning the role and purposes of Trade Unions, the Arbitration Commission and our various State wage fixing tribunals has begun to develop.

At the same time, within the Federal Opposition, moves to push for the deregulation of the labour market have gained momentum, and John Howard's elevation to the Leadership of the Opposition is significant in that context.

We would probably have to go back to the early days of Federation, and the debates leading up to the passing of the Conciliation and Arbitration Act, to find a precedent for this debate. Its outcome will have very great significance indeed for Australia's future economic growth, political development and ultimately, perhaps, territorial integrity.

The signatories to this letter hold the view that there needs to be an increase both in the tempo of the debate and of its depth and breadth of intellectual content. Although it has started off well there is a risk that it may slow down and perhaps peter out. In particular, the declared intention of the Government to bring down a Bill in next year's autumn session implementing the recommendations of the Hancock Committee makes the following proposal, we think, particularly timely.

Our proposal is to establish the H R Nicholls Society, to commemorate the editor of the Hobart 'Mercury' who, in 1911, wrote an article in his newspaper which resulted in Mr Justice Henry Bournes Higgins, in his capacity as President of the Arbitration Court, notifying the Attorney General, seeking to have Nicholls charged with contempt of court.

The incident which sparked off Nicholls' editorial was an exchange between H. E. Starke, Q.C. (later Mr Justice H.. E. Starke of the High Court) and Mr Justice Higgins in an Engine Drivers' and Firemen's Award case in the Arbitration Court. The exchange was as follows:

Mr Starke. Of all the labour organizations I have ever heard of, Broken Hill and that field seem to be the strongest and about the most tyrannous I have ever heard of. They not only do not do their work but they break their agreements with impunity and they are encouraged by their Unions and by the Government of this country.

Higgins, J. I will not allow you to speak in that way of the Government of this country. You have no right to speak in that way, and you will understand I will not listen to it.

Mr Starke. I am entitled to put forward any view for my clients.

Higgins, J. You are not entitled to speak disrespectfully of those above you.

Mr Starke. I am not speaking disrespectfully.

Higgins, J. If that is not disrespectful I do not know what is.

Mr Starke. I spoke of the tyranny of these Unions at Broken Hill.

J Higgins, J. I will not allow you to speak in that form of a Government of the country and those above us. If you do not comply with my rules you will leave the Court.

Mr Nicholls' article was headed 'A Modest Judge' and began thus:

'Mr Justice Higgins is, we believe, what is called a political Judge, that is, he was appointed because he had well served a political party. He, moreover, seems to know his position, and does not mean to allow any reflections on those to whom he may be said to be indebted for his judgeship.'

The article went on to discuss whether the judge meant by the words 'those above us' the government, or the Broken Hill unions, or the Labour organisation, or the caucus.

This article resulted in Mr Nicholls being charged with contempt. The case was heard by three of Higgins' brother judges of the High Court, Sir Samuel Griffith C.J. and Justices Barton and O'Connor who dismissed the charge. The C.L.R. account of the case is enclosed.

Higgins' biographer, John Rickard, tells us Nicholls became a hero in his native town. Given that the Arbitration Commission has visited much mischief and misery upon Tasmania since that date, the enthusiasm of the citizens of Hobart for their editor was well founded.

Our aim in setting up this Society is, through discussion and debate, to give new impetus for reform of our present labour market and to provide a forum for discussion of alternatives to the present regulation of industrial relations. There are many problems to be analysed and many possible solutions to be considered.

Our suggestion is to hold an Inaugural Seminar of the Nicholls Society on the weekend beginning Friday evening 28th February, through to Sunday 2nd March, in or near Melbourne, at a venue yet to be selected. A series of important papers will be given on the legal, constitutional, economic, philosophical, sociological and industrial relations aspects of what has been called 'our Higgins problem'.

Hugh Morgan has agreed to open the seminar which will be an 'in club' affair so that we can discuss these matters without restraint. We do hope you will see fit to join us in this venture.

Yours sincerely,

Steering Committee

John Stone Barrie Purvis

Ray Evans Peter Costello

The Signatories

John Stone
Formerly Secretary to the Commonwealth Treasury, now consultant at Potter Partners in Melbourne.

Barrie Purvis
Director, Australian Wool Selling Brokers Employers' Federation

Ray Evans
Executive Officer at Western Mining Corporation Ltd.

Peter Costello
A Melbourne barrister with experience in industrial law and practice.