Arbitration In Contempt
THE H R NICHOLLS SOCIETY
January 16, 1986
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
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,
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
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
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
Mr Nicholls' article was headed 'A Modest Judge' and
'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
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
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.
John Stone Barrie Purvis
Ray Evans Peter Costello
Formerly Secretary to the Commonwealth Treasury, now
consultant at Potter Partners in Melbourne.
Director, Australian Wool Selling Brokers Employers'
Executive Officer at Western Mining Corporation Ltd.
A Melbourne barrister with experience in industrial
law and practice.