Arbitration In Contempt
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
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
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
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
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
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.
Why HR Nicholls?