Arbitration In Contempt


John Stone

Within the last two years or so 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. No doubt inevitably, in the wake of the great progress made in recent years in deregulating the financial markets, moves for the now increasingly necessary deregulation of the labour market have gained momentum. It was against this background that, late in 1985, it was proposed to establish the H R Nicholls Society, and to mark its arrival by holding, on the weekend of 28 February-2 March, 1986, an Inaugural Seminar in Melbourne at which limited participants would deliver a series of papers on the many aspects of this matter.

Henry Richard Nicholls became Editor of the Hobart Mercury in 1883, having spent the previous 23 years as Editor of the Ballarat Star. Born in London in 1830, he had come to Australia in 1853 and during the latter years of the Century became prominent both for the force and general good sense of his writings and for the uprightness and general quality of his personal demeanour.

In April, 1911, in the course of a case in the Commonwealth Court of Conciliation and Arbitration relating to the Engine Drivers' and Firemen's Award, there occurred an exchange between Mr H. E. Starke, Q.C. (later Mr Justice Starke of the High Court) and Mr Justice Henry Bournes Higgins, generally regarded as the 'father' of the Australian arbitration system. Mr Justice Higgins doubled in the judicial role, as a Judge of the High Court and (as on this occasion) as President of the Arbitration Court. The exchange was as follows:

    'Mr Starke: Of all the labour organisations I have ever heard of, Broken Hill and that field seem to be the strongest and about the most tyrannous I have ever beard 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 I like for my clients.
    'Higgins, J.: You are not entitled to speak disrespectfully of those above us.
    '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.
    'Higgins, J.: I will not allow you to speak in that form of a Government of the country of those above us. If you do not comply with my rules you will leave the Court.'

Arising out of this exchange the Hobart Mercury on 7 April, 1911 carried an editorial entitled 'A Modest Judge', which began as follows:

    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 be may be said to be indebted for his judgeship.

Notwithstanding his considerable reputation for handling out strong words, particularly to employers, Mr Justice Higgins was less well accustomed to taking them. Accordingly, the Attorney-General of the Commonwealth immediately brought an action in the High Court that Nicholls should be ordered to stand committed to prison for his contempt of the High Court, or in the alternative for his contempt of the Commonwealth Court of Conciliation and Arbitration, in printing and publishing (this) article concerning Mr Justice Higgins ... and that Nicholls should be ordered to pay the costs ... '.

The case was heard before Chief Justice Griffith and Justices Barton and O'Connor of the High Court. The Crown argued that any publication calculated to bring a Judge into contempt, or to lower his authority, is a contempt of the Court. In his judgment for the Court, Griffith, CJ. dismissed this view. He distinguished between two categories of contempt of Court, the category characterized as 'scandalizing a Court or a Judge', and the category which was 'calculated to obstruct or interfere with the course of justice or the due administration of the law'.

As to the former category, the Chief Justice noted that 'every defamatory publication concerning a Judge may be said to bring him into contempt as that term is used in the law of libel, but it does not follow that everything said of a Judge calculated to bring him into contempt in that sense amounts to a contempt of Court'.

As to the latter category, the Chief Justice asked whether Nicholls' editorial was 'calculated to obstruct or interfere with the course of justice in the High Court or the due administration of the law by the High Court'. It was, he said, 'impossible to answer that question in the affirmative'. Accordingly, 'the motion will be dismissed'.

The King versus Nicholls was thus an important case, not least in its longer-term relevance to the freedom of the Press in Australia. As Higgins' biographer, John Rickard, has remarked in his recent book, 'The Rebel as Judge', in the wake of this case Nicholls became a hero in his native town. Two months later, in June, 1911 a committee of Hobart's leading citizens arranged a public reception for him to mark this triumph, and indeed his long service to the community more generally. On that occasion, in the words of the obituary for Nicholls which subsequently appeared in the Hobart Mercury, 'the Town Hall was crowded with people representative of every class in the community, who thronged there to do him honour'.

Indeed, they had much reason to do so. Nicholls appears to have been a remarkable man. When, just over a year later, he succumbed to a bout of influenza at the age of 83, he had completed a working life spanning some 65 years, the last 29 of them as Editor of the Mercury, actually writing his last leading article on the Sunday two days before his death. On the following day, members of the Tasmanian Bar asked, in an appearance before Mr Justice McIntyre of the Supreme Court of Tasmania, that their sincere sympathy be conveyed to one of Nicholls' sons (Mr Justice Nicholls of that Court). Responding, his Honour expressed the view that 'the public at large had lost a faithful friend and servant, one who had always done his duty in the best of his ability'. Recalling the public occasion in Nicholls' honour a year earlier, Mr Justice McIntyre remarked that 'it was evident at the function that his intellect was in no way impaired by his advancing age'. That judgment is, indeed, fully confirmed by the transcript of Nicholls' remarks on that occasion.

In its editorial testament to its late chief, the Mercury said, inter alia:

    'Mr Nicholls was a sound and a brilliant writer, but be was something much more. He had a remarkably orderly and logical mind, shrewdness of judgment combined with quickness of apprehension, a horror of sham and humbug, and a fearlessness based on uprightness which forbade him any slight divergence from the strict line of duty. He had high ideals of public life and conduct, ... Mr Nicholls was a vigorous critic of measures which, while supposed to help the people, were according to his views and his experience, likely to result tn mischief ...

    Those who have been associated with Mr Nicholls in the work of his life gave him every respect and reverence for his capacity, and affection for his kindly qualities of manhood which only those in close contact with him realised in their full...

As the legal case which carries his name bears testimony, Nicholls was keenly aware of the need to avoid the pollution of the real law, and the real courts, by the insidious incursion into them either of politicized Judges or of the administrative writ of the political executive. There is no need, against that background, to ask what Nicholls would have thought of the Hancock Committee's proposal to establish a new so-called Labour Court, to transfer to that trumped-up body all cases in the industrial relations jurisdiction, and to staff it with members (formally, legally qualified) of the Commonwealth Conciliation and Arbitration Commission.

This proposal, which has been accepted in principle (sic) by our Government, would undoubtedly have drawn forth from Nicholls such withering scorn as would have made his words in his famous editorial of 7 April, 1911 look positively mild in comparison. It is instructive to remark that, at any rate to this time of writing, not one editorialist in any of our major capital city newspapers today has even seen fit to consider this proposal, subversive as it is of everything which goes to make up the role of (real) law in our society.

The papers which were presented to the Inaugural Seminar of the H R Nicholls Society, and which therefore make up these Proceedings, cover a wide and fascinating field. John Hyde's paper, for example, addresses the well-established myth that Stanley Bruce's defeat in the 1929 election campaign stemmed from his alleged attack upon the then Arbitration Court. That tale, which has for decades been told by members of the Industrial Relations Club to frighten any political children who evinced any interest in tackling the economic and social disaster which our arbitral tribunals constitute today, is found badly wanting.

Two of the papers, those dealing with the 1985 Queensland Power Dispute and the by now famous dispute at Mudginberri Abattoir in the Northern Territory, bring out well the nakedness of the methods applied---and sought to be applied---by some of our trade union bosses in their constant drive to impose their will upon the Australian people (including their members). Another, that dealing with the retailing industry in New South Wales, sets down with clarity and detachment the full infamy of the arbitral and political processes which, in that State, have conspired to deprive so many young people of the opportunity for gainful employment in the retail trade.

I shall not attempt to refer to each of the other, equally interesting contributions, but conclude only by mentioning a key conclusion in the last of them, that by Gerry Gutman on the Hancock Report. As he points out, the thing which, above all, has today done most to strip away the quasi-judicial facade from our arbitral tribunals has been the Accord between the Australian Labor Party and the Australian Council of Trade Unions. Now that industrial relations deals, including wage rates, new proposals for superannuation entitlements and the like, are arrived at between these two parties, the supposedly tripartite processes before the Commission can now be more clearly seen for the irrelevant charade which they have always been.

For all its faults, the Accord has thus done us all a public service. More than any other single event, it has held up to us the mirror in which we can clearly see Arbitration in Contempt. That---and the event which the formation of the H R Nicholls Society commemorates---make that a worthy title for this volume.