From Industrial Relations to Personal Relations:
The Coercion of Society

Trade Unionism and the New Protection

Dr Geoffrey Partington

Before 1890

The first half of the nineteenth century saw little in the way of trade union development in the Australian colonies. This was in part because of convictism, partly because there were few enterprises employing large numbers of employees, and partly because labor shortages meant that wage rates were higher than British immigrants had previously experienced. The Gold Rush of 1851 helped to push up wage rates further, quickly and substantially.

The legal position was broadly that of British unions after the repeal of the Combination Acts in 1824 and passing of the Trade Union Act of 1825. A fundamental common law principle was freedom of contract: the concept that people should be free to make bargains with each other and that the law should enforce such contracts if necessary. This principle extended to relations between capital and labor. The courts could, however, and often did set aside contracts entered into under duress, misrepresentation, fraud, or if they had criminal or illegal purposes. It was legal to form trade unions, but they were not legal corporations able to sue or to be sued. Unions later pressed for the right to sue, but sought equally energetically to be free from tortious actions against them. No statutes declared collective bargaining unlawful because in restraint of trade, but common law actions might be pursued against union activity aimed as restraint of trade and breaking of contracts. Master and Servant Acts based on pre-1867 English law made possible imprisonment of employees who, without good reason, broke contracts of employment or wilfully or negligently destroyed or lost property entrusted to them. These acts were invoked from time to time: in 1858, for example, some German masons who had been brought out to Victoria to work on the railways and who were then persuaded by Victorian masons to break their contracts were prosecuted and imprisoned, and some labourers recruited in Sydney to work in Maryborough who refused to work once they found their terms were less than the going rate there were fined. However, for the most part these acts were not implemented here, and it was very rare that common law actions were taken against combinations to increase wages or alter hours of work, unless accompanied by molesting and obstructing. The law in all the colonies allowed employers and unions to select arbitrators to deal with disputes arising from existing contracts, as in other types of commercial arbitration. The major changes which took place during and after the 1870s in laws affecting unions in Australia arose in response to legislation in Britain, not to agitation in Australia. J.H. Portus, whose The Development of Australian Trade Union Law was dedicated to Henry Bournes Higgins, conceded that 'there does not appear to be a trace of an Australian movement for reform of trade union law before the English trade union legislation of the eighteen-seventies'. Portus also noted that the population had become used to good pay and conditions well before the first significant growth of unions in the 1870s.1

During the last quarter of the century, 1902 in the case of Western Australia, most of the main provisions of the British 1871 and 1876 Trade Union Acts and 1875 Conspiracy and Protection of Property Act were enacted in Australia. Unions became corporations able to own property and to sue and be sued. This enabled them to protect their funds from defaulting officials, of whom there were many. The former common law position that all acts in restraint of trade were illegal was reversed and trade unionists were protected against criminal actions for conspiracy in respect of acts, such as peaceful picketing, taken in furtherance of a trade dispute, but intimidation, following, watching and besetting remained criminal offences, whether taken in furtherance of a trade dispute or not. What constituted peaceful and thus legal picketing in the eyes of William Guthrie, Spence and other militant union leaders often proved different, however, from ideas on the matter held by the courts.

The first effective organisations of the 1850s were mainly craft unions similar to the 'New Model' Unions, such as the Amalgamated Society of Engineers, recently formed in Britain. They included Stonemasons, Typographers, Bootmakers, Compositors, Coopers, Plumbers, Boilermakers, Tinsmiths and Sheet Metal Workers, Ironworkers and Japanners, Journeymen Butchers, Firemen, Bricklayers, and Plasterers. In general these unions were connected with the building trades and manufacturing industries in the most densely populated centres. Because of comparatively high wage levels much of their energy was devoted to reducing the hours of the working day. Several unions, such as the Tanners' and Beamsmens' Union of Victoria were expressly formed for that purpose and the Eight Hour Day was commonly the first stated objective of unions. The eight hour day was secured by legislation in New South Wales and Victoria in 1856, Queensland in 1858, South Australia in 1873, Tasmania in 1874 and Western Australia in 1896. Once secured, the eight hour day provided an excellent basis for negotiating overtime rates, as well as providing more leisure time. Yet Henry Parkes warned

"Civilization would lose its charm and value if it did not lighten the burden of the masses of humanity. But I distinguish very broadly between eight hours being sufficient for a man to labour and Parliament presuming to say how many hours he shall labour. The working classes of this country are sufficiently strong to make good---indeed they have made good---their right to work eight hours without Parliament to exercise a power which in all moral justice it does not possess... Tyranny is an arbitrary interference with your fellow- men and whether it is in the guise of a trade-union or the edict of an autocrat it is tyranny just the same."

Union organisation in the bush lagged behind the cities before the mid-1880s. Several efforts to form unions of shearers were unsuccessful, partly because of the dispersal of the potential membership and partly because wage rates were generally good without unionisation. Despite the Eureka Stockade and their ferocious opposition to Chinese on the goldfields, there was little interest in unionism among gold miners during the 1850s and 1860s, because both production and sale were very much on an individual basis so long as alluvial deposits were being exploited. As gold mining became more highly capitalised and individual operations became much more difficult, unionism became more attractive. The Bendigo Miners' Association was formed in 1872.

Underground mining of coal in the Newcastle district led to larger numbers of men working for one company and laid the basis for unionisation. Small unions based on a single mine were formed during the 1850s and these combined in 1862 to form the Hunter Valley Coal Miners' Protective Association, precursor of the Australian Mining Union. Violent incidents were not uncommon on the New South Wales coalfields, especially against non-unionists. Such incidents often started with women shouting threats and beating tins ('tin kettling') and then throwing stones, with the men ready to enter the fray if non-unionists or police defied the women. Cutting telegraph wires, barricading roads, besieging the huts of non-strikers, and tarring and feathering were among tactics used by striking miners.2 On the other hand there were frequent dispute-free intervals marked by co-operation between mine owners and mine unions.

Examples of agreements reached by non-compulsory conciliation and arbitration procedures included one in 1873 between the Associated Colliery Masters and the Coal Miners' Association of the Hunter Valley District. A strike in Melbourne in the boot industry in 1884 was settled by the Employers' Association and the Trades Hall Council. In 1885, after a dispute between dock employers and wharf labourers led to an 18-day stoppage, the two sides agreed to refer the dispute to the Employers' Association and the Trades Hall Council, which jointly selected arbitrators, who in their turn chose Professor Kernot of Melbourne University as an independent chairman. As his umpireship favoured the wharf labourers, arbitration increased in attractiveness to the trade union movement.

Individual unions soon found advantages in co-operation first on industrial matters and then on wider political issues. In Melbourne a Trades Hall Committee was established in 1856, later to become the Trades and Labour Council. The Sydney Trades' and Labour Council was formed in 1871 and similar bodies in Brisbane and Hobart in 1883, Adelaide in 1884 and Perth in 1892. These organisations and the Inter-Colonial Trade Union Congresses which met from 1879 onwards were generally moderate in policy. At the 1884 Congress the President, Benjamin Douglass of the Trades Hall Committee, Melbourne, argued that 'strikes weaken the striker', and that 'combination and the force of moral suasion' would best serve union purposes.3 W.A. Trenwith, Trades Hall Council of Victoria and later one of the first Labor parliamentarians, called in 1886 for the systematic establishment of boards of conciliation and arbitration, 'so that disputes between employer and employed may be in future adjusted without recourse to the cruel and unscientific means which have usually been adopted in the past, viz, strikes and lockouts'.4 W.A. Robinson of the Trades and Labor Council of South Australia thought 'strikes were only a relic of a barbarous age' and that 'personally he thought that the desirability of abolishing strikes with all their attendant evils and of adopting some (other) system...was beyond all question'.5 Hugh Kirk of the Hobart Trades and Labor Council wrote in his Introduction to the Proceedings of the 1889 Inter-Colonial Congress that 'Boards of conciliation and arbitration are becoming more as recognised institutions and we can hope in a short time to have them legalized. The evils resulting from Strikes and Lock-outs are such that it should form part of the duty of every Trades Unionist never to resort to them without having first offered arbitration'.6 At that congress it was miners' delegates from New South Wales who moved a motion that 'the time had come for the establishment of Boards of Conciliation and Arbitration for the settlement of all disputes between Capital and Labor, and so prevent strikes and lock-outs'. Despite the opposition of the militant J. Hancock of the Melbourne Typographical Society, who claimed that 'all the advantages the working classes had obtained in increase of wages and shorter hours arose from strikes',7 the miners' motion was carried by 50 to 6.

The 1870s and 1880s proved an extended golden age for many Australian workers, who enjoyed rising wages, falling prices and ongoing labor shortages. This period of prosperity coincided with the growth of unions and it was easy to conclude that increased unionism was instrumental in securing increased prosperity. Yet by 1889 less than a quarter of the workforce was unionised even in Victoria, the most highly unionised colony.

Restricting the supply of labor

a. Assisted immigration

Not all was sweetness and light before 1890. Most unions were determined to restrict labor supply by all means at their disposal. Reductions in working hours and limitations on apprentices helped to reduce the supply, but more important for Australian unions were immigration control and exclusion of non-unionists. Immigration from the United Kingdom was widely opposed, even by unionists who had arrived only recently from Britain. Especially detested was immigration subsidised by colonial governments. A few voices were raised to the contrary: J. Atkinson of the Provident Shipwrights Society complained that 'it ill became them that their brethren in England, when in distress, when it was over-populated, should not be assisted out of their misfortunes'. More common was the argument that 'there was no other intention on the part of capitalists, when they advocated immigration, than to lower working men's wages'.8 Mrs E. J. Cresswell of the Tailoresses' Union, Victoria, urged that workers 'had a right to sell their labour at as high a price as they could get for it. Therefore let them (governments and employers) bring out no more immigrants'.9 Queensland unionists, many of whom feared swamping by Asian labor, were the least antagonistic to assisted immigration from Britain. D. Bennett of the Amalgamated Engineers, Melbourne, attacked the Queensland government for trying 'to introduce a sufficient quantity of white labour to enable sugar planters to do without the South Sea Islanders, upon whom they have hitherto depended'10, but a delegate from the Trades and Labor Council of Queensland declared that 'whilst they could get European labour he hoped they would avail themselves of the chance'.11

b. Chinese labor

Trade union hostility to assisted British immigration was mild compared with its virulent detestation of Chinese and other Asian labor in Australia. At the first InterColonial Congress of 1879 at Sydney the motion was carried unanimously that 'the importation of Chinese is injurious, morally, socially, and politically, to the best interests of this colony.' The furniture trades were especially vitriolic against Chinese labor. Stephen Gee of the Society of Carpenters and Joiners (Sydney Branch) cited California as an example of the effect of Chinese immigration: 'promiscuously huddled together, creating disease, pestilence and leprosy'. His colleague, A. Patterson, assured the Congress that the Chinese quarters of Sydney were also 'hotbeds of opium, debauchery and degradation. He hoped the country would be cleared of them'.12 At Melbourne in 1884 W. Godwin of the United Furniture Trade Society, Melbourne, argued that Chinese would always undercut white Australian labor, not only because of lower living standards in China but because Chinese male immigrants had only themselves to support, not a family and because of their subservience to authority, which also endangered political liberty in Australia.13 John Norton, professedly representing the Lithgoe miners, although it is unlikely he ever went down a mine, was entrusted with writing the Introduction to the Proceedings of the 1885 Sydney Congress. Norton wrote

"Another weapon used by capitalists to grind the face of the poor is the wholesale importation of Chinese and coolie immigrants...Not only is this one of the most dastardly means ever conceived for reducing Europeans to the level of Chinese, but it is a system fraught with such peril to the good order, morality, and civilisation of the Christian communities of Australasia, as to appal the most indifferent. Not only have several formerly flourishing trades been ruined, but a still more serious result has been the debauching and demoralising of large numbers of the male and female population.14

At that Congress arose a rare dispute on the Chinese question. A resolution moved by H.A. Harwood of the United Furniture Society, Victoria, urged 'making it compulsory upon the Chinese to denationalise themselves by cutting off their pigtails and adopting European clothes and customs'. W. Trenwith moved a successful amendment to delete the reference to the pigtail, since 'to cut it off would savour of religious persecution', but Congress unanimously supported the other resolutions and agreed with R. Rice of the United Labourers' Protective Society, NSW, that 'it was all very well to talk of the brotherhood of man, but what they had to consider was the civilisation and advancement of the country'.15 J. Meehan of the Queensland Shearers Union claimed 16 that Kanakas and Chinese could not be compared to Europeans, no matter how low the latter are'.

The union leaders could claim to be following grass-roots opinion and action. The foremost demand of the Miners' Protection League established at Lambing Flat in New South Wales in 1861 was 'the expulsion of the Chinese'. Spence, the father of militant unionism among first the miners and then the shearers, wrote that the Australian Workers' Union he founded barred from membership, 'Chinese, Japanese, Kanakas, or Afghans or coloured aliens other than Maoris, American negroes, and children of mixed parentage born in Australia', although he boasted that it 'ignored all class or sex distinctions, and admitted all who had no other union they could conveniently join'.17 Action followed words. The violence at Lambing Flat was celebrated by Spence as

"one of the early developments of democratic feeling in Australia. So strong was it that ... the diggers ... drove the Chinese off the field, some of the pig-tailed heathens losing their lives ... But for the action of the gold diggers and restriction of Chinese immigration by a poll tax and otherwise, Australia would have been practically a Chinese possession."

Spence praised the wife and daughter of one Jack McHenry who stoned 'a boss Chinaman who was on his way to a mine and attacked him so effectively that 'he retired, the two women chasing him over the hill back toward where he had come from'.18 Spence also commended the fighting spirit of 'a sturdy North of Ireland woman' at Clunes in 1876, who led a group of women in stoning the police and the Chinese they were trying to protect against attack

"she threw a stone, cutting the cheek of the officer. After that stones flew rapidly; the horses began to plunge, and the Chinese to yell ... In less time than it takes to tell it, the horses were turned and driven off when they had come; the Chinese invasion was repulsed, and no Chinaman has ever gained a footing in Clunes even unto this day."

Although Spence often complained the civil authorities were always on the side of the bosses, he noted of this incident: 'a fuss was made by the authorities, but no one was punished. The mayor of the town at the time ... was an officer of the local A.M.A.'19 The violent spirit engendered against the Chinese was easily transferred to non-union labor.

The militant years

The late 1880s saw a significant increase in union militancy. This was not a response to worsening conditions, but began during the years of prosperity which preceded industrial depression. Although the total number remained small, there was increasing membership of socialist organisations, such as the Australian Socialist League founded in Sydney in 1887, and other radical political bodies such as the Single Tax League based on Henry George's ideas, which were for several years more popular than those of Marx or any of his followers. This radicalization of labor politics reflected that in Britain and the United States during the late 1880s in comparable conditions of prosperity and labor shortages, not growing distress.

The most important figure in pushing the union and labor movements to the left in those years was William Lane, an English immigrant. Lane has been dealt with generously by orthodox Australian progressive historians: H.V. Evatt described Lane as an 'ardent socialist and brilliant journalist', whose 'dangerous and effective leadership' the Queensland pastoralists were determined to destroy, Edgar Ross as 'a militant trade union organiser and socialist idealist', P. Ford as 'a Socialist missionary and mystic with the earnestness of a Jewish prophet', and J. Child as 'one of the great tragic figures ... a highly sensitive, puritanical man with an intensely captivating personality'.20 To R. Gollan, Lane was the man who 'tried to awaken the conscience of Queensland' and 'wed the labour movement in Queensland to the socialist ideal'.21 Lane's slogan that 'Protection and Federation' were 'the twin steps towards complete Nationality'22 proved his most lasting legacy but his calls to action conjured up nightmares rather than sunny ideals for many citizens. Even defenders of the 'White Australia' policy may well have had qualms when they read that Lane, although wishing no 'black man' ill, would 'rather see his daughter dead in her coffin than kissing one on the mouth' or 'nursing a little coffee-coloured brat that she was mother to'.23 In order to stimulate militancy, Lane and other radical journalists gave great prominence to violent incidents in union disputes, such as those described by Spence, and encouraged their extension.

The new militancy started first and then grew among the shearers during years of high national prosperity, when they secured many victories in disputes with pastoralists. The shearers organised before the pastoralists. Spence stated, 'up till 1890 the struggle had been with the individual pastoralist, and the Union had won pretty well all along the line'.24 Spence devised new methods to compensate for the problems of distance in organising industrial disputes. If a pastoralist engaged non-union labor or engaged in any action repugnant to the Shearers' Union, 'strike camps' were set up near the offending station and non-unionists were waylaid on their way to the station or forcibly removed if they managed to reach it. Shearer militancy grew no less as pastoralists, in common with most other employers, had to cope with lower prices. The average price of wool fell by nearly half between 1875 and 1893. The shearers had been happy to claim that wages should increase when prices rose or even when they were steady, but were unwilling to accept lower wage rates when prices fell substantially. Instead they continued to take the offensive.

In 1890 Spence aimed to secure the complete elimination of non-union labor by a boycott of non-union wool supported by the wharf labourers and maritime unions. The dispute soon spread throughout eastern Australia. These sympathetic strikes led to initial victory over pastoralists in Queensland and Victoria. The employers' opportunity for revenge came later in the year when the Mercantile Marine Officers' Association in Victoria sought to affiliate to the Melbourne Trades Hall Council, as well as demanding considerable improvements in salaries and working hours at a time of commercial depression. The ship owners, who had strengthened their organisation in recent months, agreed to concessions, but were adamant, on the grounds that loyalty would be divided when at sea, that the Marine Officers should not affiliate to the Trades Hall Council. At this stage the New South Wales shearers, again in dispute with pastoralists, called on the Marine Officers to join the wharf labourers and seamen in blacking all non-union wool. There was soon the biggest industrial dislocation Australia had known, with the Amalgamated Miners' Association striking in sympathy with the shearers, wharf labourers and marine officers. The ship owners tried to obtain non-union labor and to charter vessels from outside Australia. The unions were given financial support by levies on trade unionists at work in other trades and received money from British unions, which thus reciprocated support given the London dockers in 1889 by Australian unions. The result of the 1890 strike was defeat for the unions. The shearers and marine officers both ended their strike action, leaving the miners, who were not parties to the original disputes, alone on strike.

Spence's autobiography anticipated the contradictions of many later radical historians. On the one hand he gave vivid descriptions of union violence against non-unionists, as previously against Chinese, yet he also claimed that condemnations of that violence were based on hostile inventions, or at best massive exaggeration. He described strikes in terms of military campaigns of a real class war and wrote25

"the history of the Movement in Australia, as in the United Kingdom, is one of self-sacrifice, heroism and suffering far greater than has ever been shown on any battlefield."

He claimed that 'the pickets used moral suasion and intend to use nothing else', but conceded

"there is always the risk of something occurring to provoke quarrels which lead further than strict moral suasion. Sometimes the "scab" interviewed is impudent, insulting, and a bully, and tries the patience of the interviewer too far, with the result of an assault being committed."

When describing one conflict with non-unionists Spence wrote that 'it was agreed that moral suasion was to be used ... but it was understood that in any case they were not to cross over to the station'26. He admitted that 'it is not easy to say where moral suasion ends and coercion begins', and added that the union considered that 'a strike is a fight. It is warfare, and must be judged by the ethics of war, if there be such. Killing is crime in ordinary times, but he who kills most in wartime is honoured and promoted'.27

Spence described how his union dealt with non-Unionists

"on many occasions their hut was rushed at night, and they were taken away to a Union camp, where the employer would come next day and interview them. They generally assured him that they were in camp of their own free will, and intended to stay there until he gave them union terms ... It is not easy to ascertain how much the non-Unionists were influenced by fear."

A union organiser named O'Brien was commended by Spence for his courage in 'lifting' non-unionists from carts and carriages taking them to the sheep stations. Spence explained

"Some of the Unionists were great believers in immersion as a cure for "scab". One experienced organiser said he had only known one case which required more than one dip."28

When the Rodney steamed past a camp of union men at Swan Hill, some "scabs" on board 'jeered and hooted'. Naturally enough the union men sought revenge: some 'wanted to batten down the "scabs" under the hatches of the Rodney and burn them, but the leaders refused to hear of any such terrible vengeance'. Instead they only kidnapped the non-unionists and burned the boat afterwards. Spence added that the Rodney was insured, and argued that the union men could not be blamed for subsequent failure of the insurance company to meet the claim on them.29 Assaults on non-unionists were also common on the streets, as well as on wharves and in factories and mines. Coghlan was surely right when he emphasised the importance to the unions of securing monopoly power over the supply of labor30

The ostensible causes of these disputes were now one thing and now another, but behind them all was the determination of the trade unions not to work with non-unionists ... in effect the struggle was as to whether trade unionism was to be made compulsory upon all workmen.

Yet Spence expressed indignation that unionists 'were placed on the footing of persons entering on a civil war against the state',31 and denied that 'union outrages' had ever taken place. In subsequent radical histories actual violence carried out by unionists usually features lightly, whereas the threat of violence against unionists made by Lieutenant-Colonel Tom Price to the Mounted Guards in 1890 about what to do if confronted by a violent mob ('Fire low and lay them out') is seldom omitted. As La Nauze noted: 'The tradition lives on in labour history that in Melbourne in 1890 a reactionary government had made preparations for an Australian Peterloo'.32

Defeat in 1890 did not at first make the militants more conciliatory or undermine their influence on the union movement.. In 1891 flour-milling in Victoria and once again shearing in Queensland were racked by major strikes. Physical force was used again by unionists against non-unionists, and subsequently by the police and military against unionists. As in 1890 the outcome was a defeat for the unions, which had to accept as a condition to talks to end the dispute a declaration that

'employers or shearers shall employ or accept labour, whether belonging to the Shearers' Union or other Unions or not, without favour, molestation or intimidation on either side.'

Far inland, the Broken Hill miners, who had struck in support of the shearers and marine officers in 1890, engaged in further strikes in 1892, but were defeated and the Barrier branch of the Amalgamated Miners' Association was forced to agree, among other conditions, that no question of any kind apart from those concerning mining itself should form a basis for any future dispute. In Queensland in 1894 even more violence than in earlier years was used on both sides when the shearers struck again. They were again defeated and in retaliation the Nelson government in Queensland enacted the Peace Preservation Act, which gave it greater powers of coercion against strikers held to be engaged in illegal actions. Overall the great militant thrust was defeated, the twin spearheads, the shearers and miners, seemed in deep disarray, and a return to the status quo before 1890 seemed likely. This was not to be the case, however, and violence of the militants was to have significant rewards.

The origins of 'New Protection'

1. Relationship to militancy

The union defeats of the early 1890s were soon followed by the establishment of 'New Protection', a combination of compulsory arbitration and high tariffs. How did this development relate to industrial militancy and its apparent defeat? Gollan and Rickard33 both claimed that out of the weakness of defeat unions dropped earlier hostility to state interference and came to support legislation for arbitration. But we have seen that most craft unions and the Inter-Colonial Congresses favoured arbitration machinery before the rise and defeat of militancy among the shearers, wharf labourers and miners. Even less convincing is Markey's view that the continued antagonism of some militants such as Harry Holland represented 'dogged resistance' by the union movement to compulsory arbitration.34 The defeat of the strikes turned many moderate unionists further against militancy. The 1891 Inter-Colonial Congress supported unanimously a motion refusing 'to credit the acts of violence and lawlessness attributed to the Queensland bush workers, and pledge themselves to use every effort to assist the bush workers in resisting the encroachments on their just rights on the part of Australian capitalism', but most unions showed a determination not to follow the path taken by the shearers. The 1891 President, W. Hurdsfield of the Ballarat Trades and Labor Council suggested that 'the great social disturbance that passed over the colonies last year could, to my mind, have been averted if Capital and Labor had assembled and discussed in conciliatory terms the grievance that existed'.35 There was some applause when Charles McDonald of the Brisbane Council of the Australian Labor Federation told the 1891 Congress36

"Peace was all very well, but what had peace done for them in the Past? They must have justice before peace, even at the cost of a revolution."

But he was immediately answered by W. Trenwith, by then a Victorian parliamentarian as well as President of the Melbourne Trades and Labor Council, who was also applauded when he said

"The man who spoke of a revolution by force was an enemy to labor whether he knew it or not ... If he were in Russia he would be a dynamitard. He believed in force and bloody revolution where it was necessary; in Australia it was not."

Some employers, non-labor politicians and union moderates were attracted to compulsory arbitration because the militants generally denounced it, especially those who had read Karl Marx and were in principle deeply suspicious of intervention by the capitalist state apparatus into contracts of employment. When, during the course of the twentieth century, it proved that conciliation and arbitration systems favoured the unions and were by no means incompatible with strikes and industrial militancy, many Australian Marxists came to hold two contradictory opinions. They retained the older theoretical view that the state is 'the executive committee' of the bourgeoisie, so that state interventions into industry and commerce must favour employers and the rest of the capitalist class. Yet in practice they supported ever further extensions of state intervention. This ideological confusion is shown today by leading figures such as John Halfpenny and Laurie Carmichael, but in fairness to them this defect has not diminished their political and industrial effectiveness. Similarly, in my own particular sphere of interest, Australian Marxist historians and philosophers of education routinely denounce the establishment of compulsory education as a policy by which the bourgeoisie extended social control over the masses and ensured that the ideas of the ruling classes were more fully accepted by the children of the working class. At the same time these intellectual paragons denounce the availability of non-government education and demand more complete control of curriculum and teaching methods by Canberra. Such contradictions have not prevented them from gaining control of university departments of education, or from shaping the ideas of the leadership of our teacher unions.

Let us consider more carefully employer attitudes to compulsory arbitration. There is no evidence for Fitzpatrick's claim37 that employers generally took the initiative in pressing for compulsory arbitration in order to dampen union militancy, or Patmore's claim that 'the slow and cumbersome arbitration process advantaged employers by delaying workers' demands for a tight labour market'.38 Yet there is little support either for the contrary judgment of Coghlan that39

"Fortified by the experience gained in 1890, the employers as a body ceased to set any value on [arbitration] as a means of settling disputes, and it was natural for them, convinced of their ability to defeat Labour on any field, to consider that an appeal to law would be a hindrance to complete triumph."

What we can say with confidence is that after the defeats of industrial militancy there was far more support among the unions for compulsory arbitration than among employers. Patmore conceded that three quarters of union witnesses and only a third of employer witnesses who appeared before the New South Wales Royal Commission of 1890 favoured state intervention into industrial disputes through arbitration machinery.40 We can also say with confidence that employers and non-labor politicians who supported compulsory arbitration did so on the basis of two entirely opposed positions: one was that compulsory arbitration was needed because of the ongoing high potentiality for further and perhaps more successful union militancy, the other, propounded most actively by Higgins, was that compulsory arbitration was needed because of the weakness, even the helplessness, of the working class in direct bargaining about wages and conditions. The first group feared the eruption of even more violent industrial disruptions from which they might not emerge as successfully as in the conditions of the early 1890s, which had perhaps been exceptionally favourable to them. Furthermore, union militancy had coincided with the massive economic depression which affected every colony, but especially the previously booming Victoria, which suffered bank closures and the collapse of many businesses and where unemployment peaked in 1893 at 28 per cent. Although union militancy had not caused the economic depression, it was associated with it in many minds. The real significance of militancy was that it scared opinion fearful of increasing social dislocation and violence. The IWW and Australian supporters of direct action kept these fears alive in the new century. During the Broken Hill strike and lock-out of 1909 it was a Labor Prime Minister, Andrew Fisher, that Harry Holland told to 'remember that the workers may themselves have to MEET FORCE WITH FORCE'. Holland's lawyers subsequently told the court and the public that this was mere rhetorical froth, but few people were convinced. The attraction of the new arbitration system as 'the lesser evil' was extremely important in its early development. Yet many militants were disillusioned by their reverses and the departure of William Lane and his followers to Paraguay in 1893 epitomised their disenchantment. Lane had perhaps a more accurate estimation of the relative strength of the militant unions and the forces opposed to them than had the timorous elements among the employers and non-labor politicians who feared a renewal of militancy.

The view that compulsory arbitration was needed, not because union militancy might again prove a threat to industrial and social stability but because without it workers were helpless victims of ruthless and powerful employers, was advanced most persistently by Higgins. Higgins told the Victorian Parliament in 1895, that the mass of Australians were 'helpless people' without any genuine 'degree of free will', who required constant protection by inspectors. As a judge he declared in 1907 in the Harvester case 41

"The provision for fair and reasonable remuneration is obviously designed for the benefit of employees in the industry; and it must be meant to secure to them something they cannot get by the ordinary system of individual bargaining with employers. If Parliament meant that the conditions shall be such as they can get by individual bargaining---if it meant that those conditions are to be fair and reasonable, which employees will accept and employers will give, in contracts of service---there would have been no need for this provision. The remuneration could have safely been left to the usual, but unequal contest, the 'higgling of the market' for labour, with the pressure for bread on one side, and the pressure for profits on the other. The standard of 'fair and reasonable' must, therefore, be something else."

From this disingenuous argument, one would suppose that no trade unions existed, collective bargaining was unknown, and each worker depended on individual bargaining. Higgins revealed a similar blindness in 1911 in the Engine-Drivers' Case42

"The power of the employer to withhold bread is a much more effective weapon than the power of the employee to refuse to labour. Freedom of contract, under such circumstances, is surely misnamed; it should rather be called despotism in contract; and this Court is empowered to fix a minimum wage as a check on the despotic power. The fact that the Court is not also empowered to fix a maximum wage (as under the Elizabethan laws) is a recognition of the difference in the position of the contracting parties. The worker is in the same position, in principle, as Esau, when he surrendered his birthright for a square meal, or a traveller, when he had to give up his money to a highwayman for the privilege of life."

b. Mutuality of restrictive practices

Many employers and politicians who supported New Protection did not do so out of fear of renewed militancy, still less from a belief that employees were weak and helpless, but because they believed that their support for compulsory arbitration would be met by the unions with a fuller acceptance of high tariffs, not only in Victoria but in New South Wales and the rest of Australia. The state had, of course, played a much larger role in the Australian economy than in the British: in the original convict colonies the government was inevitably the dominant employer, the 'tyranny of distance' and sparsity of population encouraged much more central control over education and public relief of poverty from the colonial capitals than was the case in the United Kingdom. Soon after the end of the first gold rushes Victoria began to establish high tariffs, with David Syme of the Age the earliest influential advocate of the combination of tariff protection and compulsory arbitration which received the name of 'New Protection'. Another precursor of 'New Protection' was collusion between employers and unions in the coal industry in New South Wales. Edgar Ross complimented them for displaying even in the 1860s 'a keen appreciation of the position developing in the industry, which was already suffering from over-capacity'43 During the 1870s miners' unions in the Hunter Valley placed an upper limit or 'darg' on coal they would dig in a day. On their side the Northern Coal Owners' Association operated a fixed market price for coal, or 'vend'. The miners' union supported the vend, since they held that high coal prices meant high wages. In 1873 a formal district agreement, the 'Newcastle Agreement', established a sliding scale of wages based on the market price of coal, as well as establishing arbitration procedures between miners and owners. Such evidence of the union's influence proved a powerful incentive to non-unionists to join. In 1879, when coal prices were generally falling, the Hunter Valley miners agreed to help owners maintain prices by striking against any owner who sold under the vend price, the first strike being against the Lambton colliery, even though the Lambton miners accepted lower wages consequent on a lower coal price and refused to join the strike. They were expelled from the union. R. Gollan commented44

"At first sight it might seem extraordinary that the union should attempt to prop up a monopolistic arrangement of employers, but in the circumstances of the time it was perfectly understandable."

In fact this collusion, although it lapsed during the militant late 1880s and early 1890s, was far from extraordinary. It anticipated a key feature of Australian economic life during the twentieth century.

Australian unions, especially those of Victoria, unlike those in Britain which usually adopted Free Trade as part of the loose 'Lib-Lab' political alliance of the 1880s, generally but far from universally supported Protection, or 'Encouragement for Native Industries'. A delegate from the Melbourne Bookbinders' Society told the 1889 Inter-Colonial Congress45

"trades unionism and Protection were connected for one was the corollary of the other. One object of trades unionism was to keep up the rate of wages and it would be impossible for the employers to do so if they had Freetrade."

There were cries on "No!" when a Queensland delegate claimed that 'to protect industries through the Customs was a fallacy, for it meant that the consumers had to pay the greater portion of the increased amount'.46 Another Queensland delegate felt forced to 'take exception to the remarks of a number of speakers that a man could not be a consistent Trades Unionist and also a Freetrader'.47

Critics of protection included P. Stokes of the SA Builders' Labourers Society who considered it meant that 'the majority would be called upon to pay for the few who would derive any benefit. The great majority of the wage-earning community would be called upon to pay a higher rate for the articles produced by a few persons, while the wages were not proportionally increased'. Another South Australian, R.E. Rogers, considered it 'a mistake to put on a big tariff to foster a small industry and make the whole colony pay a higher price for one man's benefit'.48 Opponents of tariffs in several colonies feared their adoption would bring special advantages for Victoria, whose industries they saw in the same light the Victorians regarded British competition. A South Australian delegate to the 1889 Inter-Colonial Congress felt 49

"in justice to the colonies which only recently adopted protection, they must give them time to develop their own industries before making them showrooms for Victorian goods."

H. Elmslie of the Masons' Society, Victoria, agreed 'it would be selfish for Victorians' to impose a high tariff policy on all colonies, but that policy continued to prevail.

Union congresses often revealed a gap between what delegates said and what they did. At the 1886 Adelaide Congress the patriarchal J. Ashwood of the Port Adelaide Masons' and Bricklayers' Society assured delegates that he 'never allowed his family to trade with Chinese' and in 1891 J. Meehan of the Queensland Shearers' Union claimed50

for the last three years the Queensland laborers had only dealt with unionists. He had been without vegetables for two years because he would not buy them from the Chinese.

On the other hand in 1891, after listening to some indignant attacks on sweating in the tailoring trades, A. Hughes of the Tailors' Trade Protective Society, Melbourne, issued the challenge that 'there were not twenty unionist-made suits in the room', to which Mrs Muir of the Tailoresses' Union, Melbourne added 'Hear, hear; that's true'.51 No delegates came forward to try to prove them wrong. Outwork in men's and boy's clothing was to be the first victim of awards by Wages Boards in Victoria, since the piece rates set made it more expensive than factory work. This could hardly be considered an unmixed blessing for women who preferred to work at home than in factories. Under the economic theory held by some Australian unionists, service occupations made no contributions to national wealth. 'Servant girls' were described as 'parasites on society'.52 The well-named F. Flowers of the New South Wales Gardeners and Gardeners' Assistants even feared that his own members 'came somewhat under the domestic servant clause ... and were catering for the luxuries of the rich'.53 Many workers in the clothing and other trades also catered more for the rich than the poor and on that basis might be excluded as parasites from the ranks of productive workers.

Outside Victoria the unions and the new Labor Parties formed during the 1880s and soon gaining significant parliamentary representation were thus far from solidly protectionist before Federation. This was especially the case in New South Wales. Billy Hughes stated in 1901 that he 'had never been able to see that men were better off under protection than free trade',54 but when he came to see the advantages compulsory arbitration had for trade union and labor organisation, he embraced the protectionist polices he had previously attacked. When Hughes and Holman negotiated in 1902 with the protectionist William Lyne about a possible transfer of political support to him away from George Reid and the Free Traders, one of their central demands, which Lyne met, was that he should introduce compulsory arbitration.55 Hughes took it for granted that the unions would remain allied to the Labor Party and subject to its political leadership, but even after he and Holman broke with the Labor Party he retained his fondness for compulsory arbitration. Shann noted ''the eager drive of self interest' with which the New Protection inspired the Labor Party.56 Coghlan observed long before the Clarrie O'Shea case of 195457

"To the leaders it seemed that compulsory awards need have no terrors for Labour, as there did not exist, and could not be brought into existence, the means to punish effectively any body of Labour refusing to abide by a decision against it; while, on the other hand, employers would be under a severe penalty if they failed to comply with an award"

Foenander considered58

"As a matter of fact it would be impossible to exaggerate the quantum of the debt of the labour movement in Australia to industrial legislation, and to the industrial tribunals appointed to translate the aims and intentions of that legislation into practical effect. A trade union in Australia, where registered ... under the relevant arbitration legislation, has, except in the isolated case where there is more than one registered employee organisation in the same field, what amounts to a sole right of representation before such a tribunal ... Among the better-known countries there is none where organised labour has profited in such a degree from legal enactments, and the operations of the industrial authorities created in pursuance of its provisions."

Portus noted, that as well as making many awards which gave explicit preference to unionists, the effect of Commonwealth compulsory arbitration on unions was that59

"From being associations tolerated by the state they have become semi-official associations which are given a part in the making and administration of law. Also because they are semi-official bodies and charged with responsibility, they are given increased legal power over their members."

Higgins and New Protection

The first influential advocate of compulsory arbitration was Charles Cameron Kingston, when a cabinet minister in South Australia. Kingston argued that, if industrial disputants could not agree, they should be compelled to put the matter before a third party, whose award should be legally binding. The NSW Royal Commission recommended in 1891, however, that the state should intervene only if one party asked it to do so and that the arbitral decision should not be legally enforceable. Legislation along these lines was enacted in Victoria, New South Wales and South Australia between 1891 and 1894. The first enactment of compulsory arbitration was by New Zealand in 1894. Any registered union or association of employers could refer a dispute for settlement, first if possible by conciliation and if that failed by arbitration. Any consequent award was binding on both parties, but a trade union which did not wish to register under the act could not be compelled to refer its disputes to arbitration. In 1900 Western Australia enacted similar legislation to that of New Zealand. The 1901 New South Wales Industrial Conciliation and Arbitration Act replaced the voluntary arbitration system with a much more intrusive scheme than the New Zealand one: the Registrar of the Arbitration Court could intervene in a dispute even though neither side asked for intervention, the conception of a common rule was adopted, so that all comparable employers and employees were bound by the award, irrespective of whether they had been in dispute or if the firm employed union labor, and strike action could be taken against the terms of an award, although not before the award was made. This legislation in New South Wales received far more enthusiastic union and labor support than any of its predecessors, since it extended union influence throughout an industry, irrespective of its level of unionisation. Broadly speaking the typical sequence in each colony or state was that disputes could first be referred to arbitration only with the agreement of both parties, then unilaterally by one party, and finally by the initiation of a Registrar or other officer or judge of an Arbitration Court, even if neither party sought arbitration. In a parallel sequence the powers of Arbitration Courts increased from conciliation only to making unenforceable awards and finally to making enforceable ones.

More important than any state legislation was the entry of the Commonwealth government into industrial arbitration. The first efforts of Kingston and Higgins at the second federal convention of 1897 to give power to the Commonwealth Parliament with regard to 'industrial disputes extending beyond the bounds of any one state' failed by 22 votes to 12, but a similar proposal succeeded in 1898 by 22 votes to 19, largely because of a change of heart by Sir John Forrest of Western Australia. This was despite George Reid's witty warning60

(Higgins) "does not propose to hand over all trade disputes to settlement by the Federal Parliament. He hands over only those which extend beyond the limits of one state. Cannot one see that giving such power results in a most unfortunate state of affairs arising?"

That almost every dispute could artificially be extended beyond the limits of one state was a fortunate circumstance in Higgins' view. He noted in 1926

"The mood of the convention (in 1897) was such that there was no hope whatever of succeeding in an attempt to extend the whole legislative power as to labour to the Australian Parliament. But in the first session of the first Australian Parliament a resolution was carried (on my motion) in favour of committing the whole power as to labour to that Parliament."

At that time, to Higgins' regret, 'the state authorities were jealous of any encroachment on their existing powers', so that that resolution of the Commonwealth Parliament had no effect. However, soon afterwards the 1904 Conciliation and Arbitration Act, based on placitum xxxv of section 51 of the new Federal Constitution, awarded the Commonwealth power to effect 'conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state'. As Reid had anticipated, ever new ways were found to extend disputes beyond the limits of one state.

This was despite the resistance of the High Court of Australia, particularly Barton CJ and Griffiths J, who held that placitum xxxv was put in the Constitution, not to hear ordinary claims of unions registered under the Commonwealth, but to settle serious cases of industrial dislocation such as the Maritime Strike of 1890.61 These two judges were in the minority when in the Builders' Labourers case of 1914 they held that a dispute of a local character in the building industry could not qualify as a dispute extending beyond the limits of one state and thus fall under the jurisdiction of the Commonwealth arbitration system. By this stage it had long become apparent to earlier doubters in the union and political labor movements that the conciliation and arbitration system could be used to their own massive advantage, rather than placing them under the control of machinery which the militants asserted would inevitably be hostile to union interests and many moderates saw at first as neutral.

Higgins became Attorney-General in the first federal ALP government and remains the only non-party member to be a member of an ALP cabinet. Before his elevation to the bench he expressed the occasional fear that compulsory arbitration might work against the unions, since 'powers are to be given to this Court, which, unless fit men occupy seats on the Bench, the employees may some day find injurious to their position'.62 Once such a fit person as himself was there to lay down the law, Higgins entertained no further misgivings.

The consummation of the New Protection was the Harvester Judgment of 1907, in which Higgins felt able to deny the Harvester Company the blessings of protection unless it paid 'fair and reasonable' wages, as required by the Customs Tariff Act 1906 and the complementary Excise Tariff (Agricultural Machinery) Act 1906. To quote David Plowman63

"local manufacturers would be protected provided that the fruits of protection were shared between management and labour, provided that it did not result in 'unfair' prices, and provided it did not result in 'unfair' competition."

Enormous scope was provided for regulation in the name of fairness. The term 'social justice' had not yet been coined for use in such contexts. Higgins was his own authority for what was fair and reasonable: after questioning nine housewives and fewer tradesmen in Braybrook and Sunshine about retail prices and rents, he decided that 42 shillings a week was the bare minimum he could certify, an increase of over 20 per cent on the prevailing unskilled wage rate of 33 shillings a week in the industry. He declared that this minimum wage was 'sacrosanct' and could not be negotiated or modified, unlike rates paid for more skilled labour. Higgins based his scales on the supposed needs of a family of five. Shann pointed out that 'the payment of such wages to all adult male employees provided for over two million non-existent children and nearly a million non-existent wives'64 and attributed to Higgins65 'renovating as a novel extension of democratic jurisprudence the mediaeval ideal of the just price'. Had 'equal pay' doctrines emerged in the early 1900s, he could have extended his scales to women, so that any two employees of either or indeterminate sex living together would have required a basic wage capable of keeping ten persons in reasonable comfort. The rate found suitable by Higgins for Melbourne was also to be applied to similar industries in rural areas and provincial centres with lower retail prices and rents, a policy which undermined such economic advantages that these areas possessed and encouraged centralization in Melbourne and Sydney.

It did not worry Higgins that paying the new wage rates, especially in export- oriented industries which could not pass on higher costs to Australian consumers, might bankrupt some firms and increase unemployment. He declared in the Arbitration Court in 1909 about the Broken Hill dispute66

"I face the possibility of the mine remaining closed, with all its grave consequences, but the fate of Australia is not dependent on the fate of any one mine, or any one Company .... If shareholders are willing to stake their own money on a speculation, they should not stake part of the employee's proper wage also."

Rickard, almost as eulogistic a biographer of Higgins as the judges's niece, Nettie Palmer, suggested that 'to call him a fellow traveller would be to draw misleadingly on the rhetoric of another era'.67 On the other hand Rickard conceded that 'there was a strong Marxian flavour in the contrast he drew between the middle class and the class which receives wages'. Higgins spoke with contempt of the

"shop-keeping class, with their parasites, such as doctors, and agents, and brokers, and lawyers, and even parsons."68

Once launched the system was greatly to expand, even though successful challenges by the anti-protectionist Central Council of Employers of Australia led to determinations by the High Court in Rex v Barger (1908) that the first Excise Tariff Act of 1906 and then the Trade Marks Act 1905 were constitutionally invalid. To Higgins such interference by hostile governments was shocking, although when those of his own persuasion were in office his principle was that no evil should be spoken of the powers that be, as was illustrated in the celebrated exchange in the Engine Drivers' and Firemen's Award Case 1911, to which this society owes its origins

"Mr H.E.Starke, Q.C.: Of all the labour organizations I have ever heard of, Broken Hill and that field seem to be the strongest and most tyrannous I have eve 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 ..... I will not allow you to speak in that form of a Government of the country and those above us."

Rickard, by the way, insultingly refers to H.R. Nicholls' 'slipshod editorial' and describes him as 'decrepit'.69 Nicholls was indeed 83 in 1912, but Rickard would be unlikely to use such expressions about Higgins or another radical hero in old age.

The effects of New Protection

The adoption of the New Protection of high tariffs and compulsory industrial arbitration was followed by a steady fall in Australia's standing in international standard of living tables from first or second in the 1880s. Post hoc does not entail propter hoc, of course, but there is a strong prima facie case to answer, especially from those who claim the living standards and employment opportunities of the masses are their main concern. The decline of coal from an exporter in the 1880s to a sheltered non- exporter in the 1920s, before the great depression struck, was a case in point. An Australian economy based, if not on Free Trade, at least on very modest tariff protection and, if not on untrammelled freedom of contract, at least on a voluntary conciliation and arbitration system, would surely have been more competitive and prosperous. Pre-1890 trade union law, taken together with the organisational capacity of unions and facilities for voluntary conciliation and arbitration, was by no means perfect and did not prevent abuses of sweating and the like in some industries. Yet wage rates and conditions of work were better than in almost any other place in the world and negotiations between employers and employees were in general conducted on a basis of equality and comparatively in reasonably friendly terms. Furthermore, the system was capable, as in the United States, and Canada, two countries with comparable common law traditions to those of Australia, of different and superior developments from those which took place here.

The legacy of compulsory arbitration and high tariffs bequeathed by the union and labor movements, by some non-Labor politicians such as Kingston and Deakin, and by Higgins as both legislator and judge, has held back Australian economic development and standards of living, and disadvantaged country and provincial centres for nearly a century. As Ian Webber put it recently, it created 'a system that is extremely complex, still heavily regulated and increasingly legalistic' and characterised by 'a lack of consultation with one major participant in employee relations---the business community'.70 These obstacles to progress would not have been erected had it not been for the fears aroused by the militancy of the early 1890s. Violence and contempt of the law did not achieve immediate success, but they gained their ends without very much delay, because people of insufficient resolve feared the return of even worse violence and were persuaded that the only alternative was the milder hangman of compulsory arbitration. Instead of creating conditions of industrial peace, the system of compulsory arbitration and the reasons for its adoption gave massive long-term encouragement to industrial blackmail and backstairs deals. The collusion between protected employers and protected unions to restrict competition in goods or labor elevated the 'darg' and 'vend' to the status of public policy. One prime objective in celebrating the centenary of federation should be to remove obstacles to progress which had their origins in contempt for the rule of law, intolerance of dissent and statutory restrictions of opportunity.


1 Portus, J.H. (1958). The Development of Australian Trade Union Law. Melbourne: Melbourne University Press, pp. 92-3; pp. 88-9.

2 See Ross, E. (1970). A History of the Miners' Federation of Australia. Sydney: Australian Coal and Shale Employees' Federation, pp. 22-3, 37-8, 49, 61-2, 66.

3 Intercolonial Trades and Labor Unions Congress of Australasia. (1884) Official Report of Second Congress. Melbourne: Trades Hall Council, p. 52.

4 Intercolonial Trades and Labor Unions Congress of Australasia. (1886) Official Report of Fourth Congress. Adelaide: Trades and Labor Council of South Australia, p. 66. 5 op.cit., p. 68

6 Intercolonial Trades and Labor Unions Congress of Australasia. (1889) Official Report of Sixth Congress. Hobart: Trades and Labor Council of Tasmania, p, vi. 7 op.cit., p. 53,

8 Intercolonial Trades and Labor Unions Congress of Australasia. (1879). Official Report of First Congress. Sydney: Trades and Labour Council of NSW, pp. 33-4.

9 Intercolonial Trades and Labor Unions Congress of Australasia. (1885) Official Report of Third Congress. Sydney: Trades and Labour Council of NSW, p. 67.

10 1884 Congress, p. 109.

11 1886 Congress, p. 99.

12 1879 Congress, pp. 36-9.

13 1884 Congress, pp. 45-50.

14 1885 Congress, pp. xi-xii.

15 op.cit., pp. 70-4.

16 op.cit., p. 97

17 Spence, W.G. (1901). The Awakening of Australia: Thirty Years in the Life of an Australian Agitator. Sydney: Workers' Trustees, p. 49.

18 Spence, 1909, p. 21.

19 Spence, 1909, pp. 34-5.

20 Evatt, H.V. (1964). Australian Labour Leader: The Story of W.A. Holman and the Labour Movement. Sydney: Angus and Robertson, p. 18; Ross, E. (1970). A History of the Miners' Federation of Australia. Sydney: Australian Coal and Shale Employees' Federation, p. 94; Child, J. (1971). Unionism and the Labour Movement. Melbourne: Macmillan, p. 88; Ford, P. (1977). Cardinal Moran and the A.L.P. Melbourne: Melbourne University Press, p. 64.

21 Gollan, R. 1976). Radical and Working Class Politics: A Study of Eastern Australia 1850-1910. Melbourne: Melbourne University Press in association with the Australian National University, pp. 123-4.

22 The Boomerang, 1 Sept. 1888.

23 The Hummer (Wagga), April, 1892 (cited by H. McQueen. (1975). A New Britannia. Ringwood, Vic: Penguin Books, p. 48).

24 Spence, 1909,p. 57.

25 op.cit., p. 12.

26 op.cit., p. 137.

27 op.cit., p. 132

28 op.cit., pp. 60-1.

29 op.cit., pp. 133-5

30 Coghlan, T.A. (1969). Labour and Industry in Australia: From the First Settlement in 1788 to the Establishment of the Commonwealth in 1901, vol III, p.1591.

31 Spence, p. 115.

32 La Nauze, L. A. (1979). Alfred Deakin: A Biography. Sydney: Angus and Robertson, p. 130.

33 Gollan, 1960, p. 183; Rickard, J. (1976). Class and Politics: New South Wales, Victoria and the Early Commonwealth, 1890-1910. Canberra: Australian National University, ch.10.

34 Markey, R. (1988). The Making of the Labor Party in New South Wales 1890-1900. Kensington: University of New South Wales Press, pp. 268-81

35 1891 Congress, p. 16

36 op.cit., p.65

37 Fitzpatrick, B. (1969). The British Empire in Australia: An Economic History 1834-1959. Melbourne: Macmillan, pp. 228-9.

38 Patmore, G. (1991). Australian Labour History. Melbourne: Longman Cheshire, p. 104.

39 Coghlan, vol. IV, p. 2104.

40 Patmore, 1991, pp. 104; 107.41 C.A.R., vol. 2, p.4 ((cited in Rickard, J. (1984). H.B.Higgins: the rebel as judge. Sydney: George Allen & Unwin, , p. 172).

42 Engine-Drivers Case, CAR, vol. 5, p. 27. (cited in Rickard, 1984, p. 185).

43 Ross, 1970. p. 21.

44 Gollan, R. (1963). The Coalminers of New South Wales. Melbourne: Cambridge University Press.

45 1889 Congress, p. 21.

46 op.cit., p. 24.

47 op.cit., p. 27.

48 1886 Congress, p. 22.

49 1889 Congress, p. 22.

50 1891 Congress, p. 32.

51 op.cit., p. 31.

52 op.cit., p. 38.

53 op.cit. p. 40.

54 Sydney Morning Herald, 6 March 1901 (cited by Booker, M. (1980). The Great Professional: A Study of W.M. Hughes. Sydney: McGraw-Hill, p. 590.

55 Booker, 1980, pp. 74-5.

56 Shann, E.O.G. (1930). An Economic History of Australia. London: Cambridge : University Press, p. 400.

57 Coghlan, 1969, pp. 2105-6.

58 Foenander, Orwell De R. (1962). Trade Unionism in Australia: Some Aspects. Sydney: The Law Book Co. of Australia, pp. 6-7.

59 Portus, 1958, p. 115.

60 Debates of the Australasian Federal Convention (3rd Session, 1898), i. 208.

61 (1913), 15 C.L.R. 586, 598.

62 C.P.D., vol. 15, p. 3464 (cited in Rickard, 1984, p.p, 138-9).

63 Plowman, D. H. (1993) 'Protectionism and Labour Regulation' in 'A New Province for Law and Order': The Proceedings of the H.R. Nicholls Society, Vol. 13, p. 65.

64 Shann, 1930, p. 384.

65 op.cit., p. 376.

66 AMA v BHP, vol. 3, p. 33 (cited in Rickard, p. 175).

67 Rickard, 1984, p. 175.

68 Austral Light 1 Jan 1902 (Cited in Rickard, 1984, p. 130).

69 Rickard, 1984, p. 187.

70 Webber, I. (1994). Mayne Nickless: Chairman's Review 1994. Melbourne: Mayne Nickless, p. 3

Why HR Nicholls?