The Sir Richard Kirby Archives

Opening Speech by the Honourable Professor Joseph E Isaac AO

Nauru House, Melbourne

25 October 2002

Thank you, Mr President, for giving me the honour of opening the Commission's archives. I am conscious of the great privilege. May I also say how delighted I am by the presence at this ceremony of Mrs Kate Barry, one of Sir Richard Kirby's daughters.

I am not sure what it says about one of the most important institutions in this country that it should have taken almost 100 years for it to establish its archives? Undue modesty? An oversight? Undue pressure to attend to more immediate tasks? A lack of confidence in itself? Intimidated by eminent soothsayers predicting its impending demise in almost every decade?

Whatever the explanation, the Commission is to be congratulated for finally having taken the step to collect and preserve systematically and in one place, the highlights of its illustrious history. Better late than never! For me personally, as a student of our industrial relations for more than half the life of the Commission and its predecessor, this is a most exciting and worthy venture.

Some will argue that the Commission has an excellent library on industrial relations and related matters; is that not enough? As one who has availed himself of its facilities, gratefully, over the years, I hope it continues to acquire the wide range of material important to practitioners and scholars. But archives have a different purpose. They are more selective and narrowly focused in their collection and more active in their dedication to filling the gaps in it. In this case, although located within earshot of the Commission's library, they identify themselves as a specialised collection, devoted to preserving documents, books, photographs and other memorabilia together in one place, and attempting to give as complete an account as possible, of the life of a unique institution. Most archives are secreted in basements or warehouses, away from the public gaze. These archives are different; they are more like a museum, although, I hasten to add, not of an institution long gone, but a continuing lively body.

Why have archives?

There are several points in answer to this question. One, the need for an important public institution, subject to changing personnel and function, to have a memory bank for the use and enlightenment at least of its changing personnel, so that they may have a sense of the history of the body to which they belong. Just as a person without a memory, effectively without functioning brains, is deficient, so an important institution without a memory bank is incomplete.

Another perfectly valid justification, even if seemingly somewhat self-promoting, is that its archives represent a celebration of the institution itself, by displaying its extraordinary history for all to see.

A further justification is that such a facility has an obvious and enduring educational function not only for its personnel but also for the community generally and scholars in particular. It is to be hoped that the many students from schools and universities who sit in on Commission hearings from time to time, may be encouraged to visit the archives and draw from them a fuller appreciation of our industrial relations system.

The history of our industrial tribunal is an important part of the history of Australia, especially in its industrial, economic, social, and legal aspects. The importance of history hardly needs elaboration, but, unfortunately, this tends to be forgotten. So let me state the obvious.

To truly understand the present, one needs to look at the past - the present is not detached from the past - it has evolved from the past. Or to use the words of a distinguished historian1; 'the past lives in the present'. History weighs heavily on present attitudes, conventions and values, even if sub-consciously. All this is not to say that we can predict the future from a study of history. But historical analysis, an educated view of the past, provides insight into current problems and informed judgment on how to deal with them.

What makes the history of our industrial relations system particularly interesting, and understanding it, important, are the frequency and variety of changes in it, with significant consequences for the country. Our tribunals have practised in ways never envisaged by its founders; not surprisingly, because the social, industrial and economic context in which it operates, has changed from time to time. A historical analysis provides an understanding of the many forces which impinge on the institutions in the labour market and the effect on their behaviour.

These archives will, I hope, eventually contain all the important documents relating to the changing functions and procedures of the tribunal. But may I remind you briefly of some of the elements involved in these changes which you will notice as you inspect the collection.

There have been changes in the designation of the tribunal - Commonwealth Court of Conciliation and Arbitration, Commonwealth Conciliation and Arbitration Commission, Australian Conciliation and Arbitration Commission, and, in 1988, following the recommendations of the Hancock Committee of Inquiry, the Australian Industrial Relations Commission. And if the Senate had allowed the proposed change in 2000, it would have become Australian Workplace Relations Commission. These were not merely changes in name; there were functional as well as doctrinal elements behind them worthy of study.

The Acts under which the tribunal has operated have also changed, becoming more and more complex. It is rather ironical that with greater deregulation of industrial relations in recent years, the Act has increased in legal complexity and bulk. There should be a stack of the different Acts on display to substantiate this fact.

There have been outstanding and varied personalities in the tribunal some of whose photographs adorn the walls of this room. Within the wide discretion allowed by the Act, they have put their particular imprints on the procedural style of the system and on their decisions. The records show that, occasionally, there have been sharp dissension within the tribunal, mainly because of substantial perceived differences on the role of the tribunal and the implications of the evidence and arguments presented in hearings. Without intending to espouse 'the great man' theory of history and while admitting that the economic and social context have been important in every case, it is fair to conclude from the records, that leadership has also played an important part, in the procedures and decisions of the tribunal.

There are biographies of a number of the more famous members of the tribunal - a major work on Henry Bournes Higgins by John Rickard and a smaller one by Nettie Palmer, Higgins' niece; Raymond Kelly by Braham Dabscheck; a short biographical article on Alfred Foster by Ian Sharp; and an excellent biography of Richard Kirby by Blanche d'Alpuget, which also contains copious references to Kelly, Foster and other of his colleagues. No doubt more will be collected by the Commission's Archivists from journal articles, newspapers and other sources in due course. The photographs give a visual impression of the people concerned and breathe life into the history of the tribunal. It is to be hoped that when the oral histories and other relevant documents of notable members of the tribunal are released, that copies may be made available to the Commission's Archives.

I notice that there are few of Sir Richard books in the collection on display today. It is said that Justice Raymond Kelly's copy of Higgins' A New Province for Law and Order contains comments like 'Bosh!', in the margins written in Kelly's handwriting. That copy would be a valuable item in the collection, and I hope that Sir Raymond's family might be persuaded to have it housed here.

The changing location of the tribunal's headquarters in Melbourne, its size and style of accommodation, are also worthy of note. They tell a story about the work of the tribunal. The first 'permanent' home of the Court was in a handsome cream-coloured Victorian building in Lonsdale Street, named Rostella. The Hon. SDP Lacy has drawn my attention to an amusing reference in Robert Garran's Prosper the Commonwealth, which, with your indulgence, I will read:

From Rostella, the tribunal, by then the Commission, moved in 1958, to a specially designed spacious modern building in 451 Lt Bourke Street, able to house both the judges and the commissioners, facilitating a more cordial and consensus atmosphere Kirby was intent on promoting; `to work as a team', as he put it in his farewell speech which you will find here in this room. But by 1979, the personnel of the Commission had expanded beyond the capacity of this building, and it moved to its present location to take up many floors in Nauru House.

Although archives are intended to collect historical material, what is an historical item today was a contemporary document when it first came to light. This suggests that the Commission's archives should also acquire contemporary material related to its special interest. Books, articles in learned journals and in newspapers, and photos, would seem to be appropriate items to acquire, of course on a highly selective basis because of storage limitations, but the use of CD-Rom and other modern devices should help to overcome this problem.

I hope I have said enough to justify the development the Commission's archives. The decision of the Commission to name its archives after its Founding President, Sir Richard Kirby, is most fitting. He had served as Judge and Chief Judge of the Court and President of the Commission for 26 years, longer than any other head of the tribunal. He had had most interesting career before he was appointed to the Commonwealth Court of Conciliation and Arbitration in 1947 - industrial barrister, army educator, prospective parliamentarian, New South Wales District Court judge, War Crimes Commissioner. Then, after his appointment to the Court, a member of the United Nations sponsored Good Offices Committee to resolve the Dutch-Indonesian crisis. From 1947 to 1949, he was Chairman of the Stevedoring Industry Commission.

Sir Richard Kirby presided over the Commission in its difficult formative years from 1956 to 1973, a period of full employment, high inflation and extensive industrial action. During that time, he changed the character of the tribunal `from unnecessary pomp and circumstance', to use his words, and set its course for its future. After the first year of its life, wigs and gowns were dispensed with. Kirby broke the traditional barrier between the tribunal and the general public by speaking at various public functions to explain the role of the Commission, and participated actively in industrial relations societies. He was Foundation Patron of the Victorian Society for many years. By freeing members of the Commission from `the shackles of the judicial court room proper....these outward changes have encouraged us all and those who deal with us to get to the heart of things and trust each other more.'2

The survival of the Commission as a viable institution in moderating industrial activity was at stake following the abandonment of automatic cost of living adjustments in 1953. Kirby adopted what he used to refer to as a 'realistic and flexible' approach, effectively giving greater emphasis than had been the case hitherto, to the Commission's role in preventing and settling industrial disputes rather than acting as an economic legislature. He often said that perhaps his most important decisions was in the 1966 Cattle Station Industry (Northern Territory) Award case, in which his bench awarded the same wages to aboriginal as to white stockmen, eliminating an enormous differential between them. Although still a matter of controversy, it would be fitting for this decision and any photos associated with it to be displayed in this room.

Kirby, `call me Dick', was an engaging man of great charm and warmth, rather emotional but beneath it all, lay a strong and determined will. The story of the formation of the Commission following the Boilermakers' Case and the problems arising from Kirby's appointment as President over the head of the more senior Alfred Foster, are graphically described by d'Alpuget. It produced great tension between the two, which many attending the hearings would have sensed. It is said that Foster graciously made his peace and acknowledged his superior colleague at a luncheon to visiting dignitaries in 1962. Sadly, he died the next day of a heart attack.

In 1973, Kirby retired on health grounds, being strongly advised by his doctor to do so. He was 69. Less than a year after his retirement, it was discovered that the symptoms which forced his retirement, were due to thyroid deficiency which was subsequently readily corrected. The dramatic circumstances of this diagnosis is related in d'Alpuget's book. But it is interesting to speculate whether the course of Australian industrial relations might have been different if his thyroid deficiency had been discovered earlier. Sir Richard's appointment was for life. He died last year at the age of 97. It is also interesting to speculate what might have been the history of the Commission, if Foster had been appointed instead of Kirby.

You will gather from what I have said that I am most delighted that the Commission has established its archives and attached the name of Sir Richard Kirby to it. I congratulate you, Mr President, for breathing life into the concept, and I also congratulate many others who assisted in the project, in particular, Helen Coulson who has been the main curator of what we see here. This is, I hope, only the beginning of a collection which will grow into a leading source of intelligence, a museum, on the history of the Commission and its predecessors.

Accordingly, it is with very much pleasure that I now declare the Sir Richard Kirby Archives open. May it grow in size and fame.

1 R M Crawford, (1939) The Study of History, MUP, p.17

2 Farewell Speech, 21 May 1973,p.2.