No more islands

Human rights & industrial relations

Michael Kirby

Early days

There are three reasons why, despite my natural reticence, I agreed to give this lecture, the tenth in the series to honour the memory of Associate Professor Kingsley Laffer.

The first reason may not be widely known. I am a graduate of the Faculty of Economics (now the Faculty of Economics and Business) of the University of Sydney. Not content with my degrees in Arts and Law, I came by bus to this campus at the end of busy days, as a young solicitor, to secure instruction in Economics. I was not taught by Kingsley Laffer, but I had other fine professors. They included Sir Herman Black, Harry Edwards and Henry Mayer. Those teachers gave me a perspective of public policy issues, seen through the prism of economics, which, alas, few lawyers (and fewer judges) enjoy.

I well remember sitting on the steps of a large lecture hall near this one to be instructed about Australia's industrial relations system by Professor Edwards (later a member of the Federal Parliament in the interest of the Liberal Party). Until his instruction, I had only seen that topic from the perspective of my lectures in constitutional law. Indeed, the conciliation and arbitration power in the Australian Constitution had been a most fruitful source of litigation in the High Court of Australia from the dawn of federation. Harry Edwards examined the system for its economic efficiency. He was often critical. But he would acknowledge (as I remember well) that some advantages of Australia's industrial relations system could not be measured solely in economic terms. Issues of justice and community were inescapably involved. Moreover, he would agree that, whereas economists would have as many opinions as their number allowed, and then some, lawyers (who for the most part made up the Conciliation and Arbitration Commission in those days) would reach a firm decision. They would do so without delay, on all the matters of dispute. It might be a decision that many regarded as wrong - and at least half of the economists, politicians and parties would do so. But it would be a decision. Decision-making and moving on, he acknowledged, were the strengths of the Australian system of industrial tribunals.

As Professor Alistair Davidson has said, the adoption of s 51(xxxv) of the federal Constitution, giving the Federal Parliament power over conciliation and arbitration of industrial disputes extending beyond any one State, "effectively put the major issue of social rights on a national scale - the relations between capital and labour - into the hands of a court". And courts (or their other-selves, independent tribunals) are trained and expected to make up their minds and solve contests quickly.

Kingsley Laffer was teaching in the School of Industrial Relations of the University of Sydney when I was taking my Economics degree. I knew his work well because I had taken the optional subject of industrial law when studying for my law degree. I read his books. But for one reason or another, I did not, whilst studying in this Faculty, take the course in which he lectured. I knew that his basic instruction was that "accommodation in industrial relations had to be built on mutual trust". Often, but by no means always, the venue for searching out and finding the common sources of trust was, in the Australia of those days, the network of industrial tribunals, federal and State, that brought the chief contesting parties together. The Constitution seemed to cement those institutions in our national life. Longstanding practice, institutional self-interest and economic need seemed to ensure that things would stay that way for the indefinite future.

Justice Henry Higgins, one of the founders of the Australian Commonwealth, a Justice of the High Court of Australia and one of the eight High Court judges who served on the federal arbitral tribunal, remarked